Industries

On 11 November 2020, the Court of Appeal handed down its judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on-damage actions. The judgment concerns an appeal relating to a preliminary issue arising in seven claims for damages following on from the 2016 Commission Trucks settlement decision (the Settlement Decision). The Court of Appeal held that the five truck manufacturers could not deny facts they had admitted in settling with the Commission – facts that were subsequently recorded in the Settlement Decision.

On November 10, 2020, the Commission sent a Statement of Objections (“SO”) to Amazon, alleging that Amazon abused its dominance on the market for provision of marketplace services in France and Germany, by accumulating and using sensitive data of independent retailers to benefit Amazon’s own retail business.[1] On the same day, the Commission announced that the investigation into Amazon’s e-commerce business practices was spun-off into a standalone probe.

On 6 November, the CMA published new draft guidance on jurisdiction and procedure in UK merger cases (Draft J&P Guidance) and on the CMA’s mergers intelligence function. On 17 November, it published new draft guidance on the substantive assessment of mergers in the UK (Draft Substantive Guidance). The draft sets of Guidance incorporate developments in the case law, reflect the evolution of the CMA’s policies and procedures, and take account of changes in the legal framework concerning public interest mergers. Together, they confirm the CMA’s expansive approach to asserting jurisdiction and reinforce a more interventionist and less formalistic approach to assessing mergers, especially in digital markets, that has been evident in the run-up to Brexit.

On October 28, 2020, the Court of Justice rejected an appeal by Pirelli & C. SpA (“Pirelli”) against a 2018 judgment of the EU General Court upholding a 2014 Commission decision which held the power cables manufacturer jointly and severally liable, with its former subsidiary Prysmian, for Prysmian’s participation in a bid-rigging cartel. Pirelli’s appeal focused on the concept of parental liability and the Commission’s obligation to explain its reasoning.

On October 27, 2020, the FCO decided that it had no objections to the planned joint venture and cooperation between the German newspaper publishers Süddeutsche Zeitung GmbH (“SZ”) and Frankfurter Allgemeine Zeitung GmbH (“FAZ”) relating to the joint commercialization of their national advertising inventory.[1]  Under German law, and in contrast to EU law, potential coordination effects between the parent companies are not already assessed as part of the merger control process relating to the creation of the joint venture, but are reviewed separately under the restrictive practices provisions of the ARC.[2]

On October 27, 2020, the ICA issued a decision (the “Decision”)[1] fining the Italian Consortium for the Collection, Recycling and Recovery of Plastic Packaging (“COREPLA”) € 27,400,477 for allegedly abusing its dominant position in the market for management of plastic waste recycling services.

On October 24, 2020, the Regional Administrative Court of Lazio (the “TAR Lazio”) upheld the applications lodged by nine leading captive banks,[1] two further financial institutions holding equity stakes in two of the applicant captive banks, seven automotive groups as well as trade associations Assilea and Assofin, for annulment of the 2018 decision by which the Italian Competition Authority (the “ICA”) imposed on the applicants[2] total fines of approximately €670 million for their participation in a cartel concerning the sale of car vehicles through the provision of financial products.[3]

On October 23, 2020,[1] the TAR Lazio rejected the appeals filed by Ecosumma S.r.l., Bifolco & Co. S.r.l., Ecologica Sud S.r.l., Langella Mario S.r.l.  (the “Companies”) and Green Light Servizi Ambientali S.r.l. (“Green Light”) against a decision issued by the ICA in 2019, finding that the Companies had coordinated their bidding behavior in a tender for medical waste management in the Campania Region, with the assistance of  the third-party consulting firm Green Light.