Industries

By Order No. 2020-560 of May 13, 2020, the Government decided not to further postpone the time limits that had been suspended or interrupted since March 12, 2020, despite the extension of the state of health emergency. Consistently, in a press release of May 18, 2020, the French Competition Authority (“FCA”) announced that it would progressively re-instate the statutory time limits that had been interrupted or suspended in light of the state of health emergency. All of these time limits will resume on June 24, 2020 at the latest.[1]

On May 12, 2020, the Frankfurt am Main Court of Appeals found drugstore chain Anton Schlecker e.K. i.I.’s (“Schlecker”) insolvency estate was not entitled to cartel follow-on damages.[1] In the Court of Appeals’ view, Arndt Geiwitz, Schlecker’s insolvency receiver acting on behalf of the estate, did not prove the estate incurred damages as a result of the cartel’s information exchange.

On 12 May 2020, the Court of Appeal handed down its judgment in an appeal against the CAT’s cost ruling in the successful appeals by Pfizer and Flynn against the CMA’s abuse of dominance decision relating to the anti-epilepsy drug, phenytoin sodium. In its costs ruling, the CAT considered that the relevant starting point was that the unsuccessful party should pay the successful party’s costs.

On May 7, 2020, Advocate General (“AG”) Pitruzzella delivered his opinion on Canal+’s appeal against a 2016 Commission commitment decision in the context of its investigation into the cross-border provision of pay-TV services.[1] AG Pitruzzella concluded that by accepting Paramount’s commitments, the Commission breached the principle of proportionality because they ignored contractual rights of third parties. Should the Court of Justice (the “CJEU”) follow this opinion, the case may lead to the first annulment by the EU’s highest court of a Commission commitment decision since the adoption of Regulation No. 1/2003.

On May 5, 2020, the Federal Court of Justice (“FCJ”)[1] granted Sisvel International S.A (“Sisvel”) an injunction against the Chinese mobile phone manufacturer Haier Group Corporation (“Haier”) to stop infringing one of Sisvel’s standard essential patents (“SEP”).  In its first application of the Court of Justice of the European Union (“CJEU”) Huawei/ZTE judgment,[2] the FCJ clarified the requirement of the patent user’s willingness to license.

In early May, eight administrative bodies in charge of regulating different sectors, including the French Competition Authority (“FCA”) for competition, published a joint working paper highlighting the need to take into account the urgency of climate change in exercising their respective missions.

On May 4, 2020, the Commission unconditionally approved Aurubis’ proposed acquisition of Metallo, having issued formal objections just a few months earlier, in February 2020.[1] The Aurubis/Metallo decision is noteworthy for two reasons. First, in the last five years, since Margrethe Vestager became Commissioner for Competition, only one other transaction has been unconditionally cleared after the Commission had sent a Statement of Objections to the companies involved, namely Tele2 NL/T-Mobile NL in 2018.[2] Second, in Aurubis/ Metallo, the Commission’s concerns were based on buyer power, a theory of harm that has been rarely applied in the Commission’s merger review practice.

The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions could raise potential issues under competition law.