Real Estate & Construction

Financial Conduct Authority (FCA) and Payment Systems Regulator (PSR)

The FCA and PSR announced that they support the CMA’s guidance on its approach to business cooperation in response to COVID-19 under competition law and will take a consistent approach to their competition law enforcement activity in the financial services sector. This means that these regulators will not enforce competition law in a way that impedes financial services providers from working together to provide essential services to consumers during the COVID-19 pandemic.

On March 27, 2020, the French Competition Authority (“FCA”) published a press release announcing that a number of applicable deadlines for merger review and antitrust proceedings will be adapted further to legal order no. 2020-306 of March 25, 2020 relating to the extension of time- limits during the state of public health emergency.

COVID-19 and Civil Procedure Rule Updates. On 25 March 2020, Civil Procedure Rule Practice Direction 51Y (PD51Y) came into force, to facilitate video and audio hearings for the duration of the pandemic.

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, and even as lockdown measures are gradually eased, their actions continue to raise potential issues under competition law.

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.

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 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].

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 9, 2020, the French Competition Authority (“FCA”) announced its main priorities for 2020.1[1] The regulator stressed that the digital and retail sectors would remain at the top of its agenda given the recent developments in these fields and the challenging competition issues they raise. Trade associations and unions may also face more significant fines while climate concerns may raise discussions between regulators to enhance environmental protection. On the legislative front, the FCA will follow the implementation of the ECN+ Directive in France and the upcoming revision of French merger control guidelines.