Technology, Media & Communications

In March 2021, the Commission adopted a Communication (the “Guidance”)[1] on the application of the referral mechanism pursuant to Article 22 of the EU Merger Regulation (“EUMR”). The Guidance encourages national competition authorities (“NCAs”) to refer to the Commission certain transactions[2] that do not meet national merger control thresholds and would otherwise escape merger control review in the EU. The Commission had long discouraged the referral of such cases, considering that they were generally unlikely to have a significant impact on the internal market.

On September 10, 2021, the European Commission published a policy brief on “Competition Policy in Support of Europe’s Green Ambition” (the “Policy Brief”).[1] A year after Executive Vice-President Margrethe Vestager called for a greener EU competition policy,[2] the Policy Brief summarizes the key takeaways from the stakeholder consultation and sets out the Commission’s ambitions for a greener competition policy. The key message being that “a green competition policy still has to be – well, a competition policy.”[3]

On September 2, 2021, Advocate General (“AG”) Bobek issued his opinions on two preliminary ruling requests, Bpost[1] and Nordzucker (the “Opinions”),[2] recommending to harmonize the principle of ne bis in idem—otherwise known as the double jeopardy test—in the EU, as it applies to all branches of EU law. AG Bobek suggested that application of the ne bis in idem principle should be based on a “triple identity” test: namely, of the offender, the relevant facts, and the protected legal interest.[3]

In September 2021, the UK Competition and Markets Authority (CMA) announced the official launch of the Office for the Internal Market (OIM), a new unit within the CMA intended to support the effective operation of the UK internal market through monitoring, publishing reports and advice, and making recommendations to the Government. This article examines (i) what the OIM does and why it was introduced; (ii) how the OIM proposes to carry out its functions; (iii) the OIM’s information gathering powers; and (iv) broader implications for UK competition policy.

On August 31, 2021,[1] the Council of State reaffirmed the position it recently took in two previous judgments regarding the calculation of fines for bid rigging cases.[2]

On July 30, 2021, the French Competition Authority (“FCA”) published its revised Fining Guidelines, which repealed and replaced the 2011 guidelines.[1] In June, the FCA had opened a public consultation on a draft, which provided for different changes of the method of calculation of fines. While the Guidelines as published have retained those changes, they also include several more minor ones resulting from the public consultation.

On July 29, 2021, the German Federal Cartel Office (“FCO”) published the results of its sector inquiry into mobile apps,[1] finding severe deficiencies regarding the information provided to app users and apps’ compliance with data protection law.  The FCO recommends app publishers and app store operators should increase transparency and requests increased private enforcement and more enforcement by data protection authorities.

On July 12, 2021, the Regional Administrative Tribunal for Latium (the “TAR Lazio”) annulled the overall €228 million fines imposed by the ICA on Fastweb S.p.A. (“Fastweb”), Telecom Italia S.p.A. (“TIM”), Vodafone Italia S.p.A. (“Vodafone”) and Wind Tre S.p.A. (“Wind Tre”; collectively, the “Operators”) for an alleged cartel aimed at coordinating pricing strategies in the transition from a 28-day to a monthly billing period (so-called repricing).[1]