Technology, Media & Communications

On 27 September 2021, the CAT issued its judgment on an application by the proposed Class Representative Mr Le Patourel, for a Collective Proceedings Order (CPO), and an application by BT (a) to strike out the claim pursuant to Rule 41(1) (b) of The Competition Appeal Tribunal Rules 2015 (the Rules) on the basis that there were no reasonable grounds for making it and/or (b) for summary judgment to dismiss the claim pursuant to Rule 43(1)(a) of the Rules on the basis that it had no real prospect of success.

On September 22, 2021, the General Court dismissed Altice’s appeal against two fines totalling €124.5 million imposed by the Commission in 2018 (the “Decision”)[1] for exercising control over PT Portugal before the acquisition had received merger control clearance, i.e., gun-jumping.

On September 21, 2021, the Milan Court of Appeal dismissed an appeal filed by Digital World Television (“DWT” or “Appellant”),[1] a company active in the distribution of audiovisual programs for adults, against the judgment delivered in 2019 by the lower court, which had also dismissed DWT’s claims for damages against Sky Italia (“Sky” or the “Defendant”) for an alleged abuse of dominant position and/or abuse of economic dependence.[2]

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]