Industries

On June 5, 2020, the French Competition Authority (“FCA”) published a study on the growth of e-commerce and its impact on competition policy. This publication provides an overview of the lasting changes triggered by the development of online sales, the impact of such changes on the analytical framework used by the FCA and the types of anticompetitive conducts that may arise as a result. The study is part of a broader reflection led by the FCA on the challenges raised by antitrust enforcement in the digital sector.[1]

On June 4, 2020, AG Kokott advised the Court of Justice to confirm the General Court’s judgment upholding the Commission’s decision of June 19, 2013 (“the Opinion”). The aforementioned decision imposed fines of €146 million on Lundbeck and five other generic drug manufacturers (“generics”) for patent settlement agreements that prevented the sale of rival versions of Lundbeck’s antidepressant drug citalopram.[1]

In a judgment issued in a simplified form on June 4, 2020,[1] the Council of State quashed the TAR Lazio judgment that had overturned the ICA decision of May 20, 2019, concerning the acquisition of sole control of R2 S.r.l. (“R2”) by Sky Italia S.r.l. (“Sky”).[2] The judgment  was given on the merits of the case although  it was adopted within the interim phase of the proceedings, pursuant to Article 60 of the Italian Administrative Proceedings Code. The parties were not previously informed of the Council of State’s decision to provide its final judgment in  this phase, based on a temporary rule introduced during the Covid-19 emergency that enables the court to omit any advanced notice of this decision.

On June 4, 2020,[1] the Council of State overturned TAR Lazio judgments that had upheld the appeals submitted by three radio taxi companies against an infringement decision issued by the ICA, regarding an alleged parallel network of anticompetitive vertical agreements between radio taxi companies and drivers active in Milan (the “Decision”).[2]

On June 2, 2020, the Commission published two inception impact assessments[1] and two public consultations which address two new policy initiatives: (1) a new market investigation tool (“new competition tool”);[2] and (2) a regulatory instrument that would ex ante govern large online platforms that act as gatekeepers with significant network effects in the European Union’s internal market.[3]

On June 2, 2020, the Commission published two inception impact assessments[1] and two public consultations which address two new policy initiatives: (1) a new market investigation tool (“new competition tool”);[2] and (2) a regulatory instrument that would ex ante govern large online platforms that act as gatekeepers with significant network effects in the European Union’s internal market.[3] These initiatives are part of the Commission’s wider efforts to modernize EU competition law in an era of digitalization. Stakeholders are invited to submit their comments up until September 8, 2020[4] and the impact assessments are expected to be submitted to the Regulatory Scrutiny Board of the Commission and be finalized in the fourth quarter of 2020.

On 13 November 2020, the Competition Appeal Tribunal (CAT) partially upheld JD Sports’ appeal against the CMA’s decision to prohibit its completed acquisition of Footasylum requiring it to fully divest Footasylum.[1] The CMA found that the parties were close competitors in sports-inspired casual clothing and footwear in stores and online. The CMA concluded there was no evidence that the impact of COVID-19 would remove its competition concerns.

On May 28, 2020 the General Court overturned Commissioner Vestager’s first prohibition decision, blocking a 4-to-3 merger in the UK…

The Commission’s Notice on remedies states that waivers “will very rarely be relevant for divestiture commitments” and since divestiture commitments are required to be implemented in a short time after the decision, it is “very unlikely” that sufficient changes in market circumstances will have occurred for the Commission to accept any modifications of the commitments.[1] In May 2020, the Commission waived commitments given to secure merger control approval in two cases.