Real Estate & Construction

On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU[1] (the “2008  Guidance”).  The Commission has amended its 2008 Guidance in a Communication and Annex.  It has also launched a consultation seeking feedback on the adoption of new Guidelines on exclusionary abuses of dominance that the Commission intends to adopt in 2025 after publishing a draft in 2024.  While the amendments in the 2008 Guidance bring it closer to the case law, they show the Commission seeking more discretion and leeway in its investigations.

On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1]  Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First,  the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine.  Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis.  Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights. 

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. …

On January 11, 2023, the French Cour de cassation partly quashed a decision of the Paris Court of Appeals. The French Cour de cassation considered that the Paris Court of Appeals had rightly held that the provisions of the French Commercial Code on practices restricting competition apply in the context of subcontracting relations, but erred in its application of these provisions.[1]

In a ruling dated January 10, 2023, the French Cour de cassation quashed an order of the Paris Court of Appeals that had annulled the seizure of attorney-client communications during a consumer law dawn raid on the grounds that they were covered by “legal privilege,” thereby excluding the application of the concept under French law.[1] Although the case relates to alleged breaches of consumer law, its reasoning can be transposed to matters relating to competition law dawn raids.

On January 5, 2023, the U.S. Federal Trade Commission (“FTC”)proposed a rule that would prohibit employers from entering into non-compete agreements (“non-competes”) with workers and require them to rescind all existing non-competes by written notice.

The recent Consolidated Appropriations Act of 2023 includes significant changes to the filing fees for Hart Scott Rodino Act filings.

On December 12, 2022, the Commission published Frequently Asked Questions and Answers (“Q&A”)[1] on the application of Article 22 of the EU Merger Regulation (“EUMR”). While this represents a step in the right direction, the Q&A fails to provide enough clarity given the ample discretion Article 22 EUMR affords the Commission in reviewing mergers that do not meet EU-level notification thresholds.

On December 8, 2022, the Court of Justice delivered its judgment in the Orde van Vlaamse Balies and Others v. Vlaamse Regering case[1] following a request for a preliminary ruling from the Belgian Constitutional Court on the validity of a Flemish decree designed to implement an EU directive discouraging aggressive tax planning arrangements. The judgment is noteworthy for broadening the scope of the legal professional privilege applicable in competition law cases.

On November 8, 2022, the Commission published its draft Revised Market Definition Notice (the “Revised Notice”) for consultation in view of a formal adoption in the third quarter of 2023.[1] The revision of the current 1997 Market Definition Notice (the “Original Notice”) was initiated in April 2020, with a particular focus on improved analysis of global and digital markets.[2] In addition to guidance on these issues, the Revised Notice largely confirms the principles set in the Original Notice, integrates as additional background recent EU decisional practice and preserves the Commission’s margin of discretion in market definition assessments.