Industries

On January 29, 2020, the Cour de Cassation issued two judgments relating to decisions from the FCA’s Rapporteur Général to waive the protection of business secrets granted to a party in proceedings before the FCA. In the first judgment, the Cour de Cassation held that the Rapporteur Général must provide concrete reasons in order to waive the protection of business secrets granted to a party in proceedings involving other parties. Conversely, in the second judgment, the proceedings did not involve any other parties, and the Cour de Cassation upheld the Rapporteur Général’s decision to waive the protection of business secrets initially granted to a party. The Cour de Cassation considered that the Rapporteur Général’s decision would not risk exposing that party’s business secrets to any third parties.

On January 28, 2020, the German Federal Court of Justice (“FCJ”) handed down another judgment concerning the Rail Cartel (“Rail Cartel II”).[1] In line with its earlier judgment concerning the Rail Cartel (“Rail Cartel I”)[2], the FCJ confirmed that claimants cannot rely on prima facie evidence to prove causal damages; at least in price, quota and customer sharing cartels. At the same time, it further aligned the requirements under German tort law with the European Court of Justice’s (“ECJ”) case law and in this context partially overruled its judgment in Rail Cartel I.

In February 2020, the FCA published a practical guide on the application of antitrust rules to small and medium-sized enterprises. The FCA published this guide with the knowledge that SMEs often lack the resources to be fully aware of and comply with antitrust rules.

On January 28, 2020, the Italian Competition Authority (the “ICA”) issued a decision finding that four telecom operators, namely Fastweb S.p.A. (“Fastweb”), Telecom Italia S.p.A. (“TIM” or “Telecom”), Vodafone Italia S.p.A. (“Vodafone”) and Wind Tre S.p.A. (“Wind Tre”) (together, the “Operators”), participated in a cartel aimed at coordinating their commercial strategies, with a view to keeping prices high during the transition from four-week (28 days) billing to monthly billing (so-called repricing), thus impeding competition and limiting the risk of customers migrating to other competitors.[1]

On January 27, 2020, the French Competition Authority (“FCA”) accepted Lego’s commitments, thereby closing a five-year long investigation into the discount policy applied to distributors by the building games manufacturer.[1] Lego committed to redefine the criteria of its discount scheme to allow online distributors to obtain the same level of discount as brick-and-mortar distributors.

On January 24, 2020, the German Ministry for Economic Affairs published a draft proposal for the 10th Amendment to the German Act against Restraints of Competition (“Draft Proposal”). Its main objectives are (i) to enable and strengthen the protection of competition in digital markets, (ii) to make German competition law and its enforcement more efficient in general, and (iii) to implement the ECN+ Directive[1].

On January 21, 2020, the Council of State confirmed the annulment of a 2017 ICA decision sanctioning a cartel between manufacturers of reinforcing steel bars (rebars) and welded wire mesh.[1] In particular, the ICA fined eight companies (namely, Feralpi Siderurgica S.p.A., Ori Martin Acciaieria e Ferriera di Brescia S.p.A., Industrie Riunite Odolesi I.R.O. S.p.A., Riva Acciaio S.p.A., Ferriere Nord S.p.A. and Fin. Fer S.p.A., Stefana S.p.A., Ferriera Valsabbia S.p.A. and Alfa Acciai S.p.A., together the “Manufacturers”) in an amount in excess of €140 million for allegedly coordinating their commercial strategies between 2010 and 2016, by fixing prices and exchanging sensitive information (among other things through the trade association Nuovo Campsider, “NC”).[2] The Council of State, fully upholding the TAR Lazio’s reasoning at first instance,[3] held that the appeal lodged by the ICA was unfounded on two fronts.

In January 2020, the FCA published its study on behavioral remedies in merger control and anticompetitive practices.[1] The study takes stock of the FCA’s decisional practice on behavioral remedies and provides material for broader discussion amongst competition law practitioners and academics.

On January 16, 2020, the FCA dismissed a complaint by French terrestrial digital television broadcaster towerCast which alleged that its competitor TDF’s acquisition of Itas,[1] constituted an abuse of dominance on the wholesale markets for digital terrestrial television broadcasting services (the “Decision”).

On January 16, 2020, the TAR Lazio[1] accepted the application filed by Società Iniziative Editoriali S.p.A. (hereinafter “SIE”), a company active in the daily newspaper market and publisher of the main daily newspaper in the area of Trento (L’Adige), for annulment of an ICA decision finding SIE to have abused its dominant position on the said market by refusing to license the editorial contents of its newspaper to companies providing daily press reviews in the area of Trento.