On June 4, 2021, the Commission[1] and the UK Competition and Markets Authority (“CMA”)[2] announced parallel investigations concerning Facebook Marketplace. The Commission will investigate at least two potential theories of harm: (i) the potential misuse of data gathered by Facebook, in particular from advertisers, in order to compete with them in other markets where Facebook is active (e.g., in classified ads with Facebook Marketplace); and (ii) the potential tying of Marketplace to Facebook’s social network. Although formally independent, the CMA’s investigation will focus on similar concerns[3] and both authorities announced they would collaborate closely.[4]
Dr. Rachael Kent v Apple Inc. and Apple Distribution International Ltd
On 4 June 2021 the CAT published an application to commence collective proceedings under section 47B of the Competition Act 1998 against Apple Inc. and Apple Distribution International Ltd (Apple). The application alleges that Apple has abused a dominant position in breach of Article 102 of the TFEU and the Chapter II prohibition of the Competition Act.
The Optical Disk Drive Cartels (AG Pitruzzella): Violation of Defense Rights to No Avail for Fine Reduction
On June 3, 2021, Advocate General Pitruzzella delivered an Opinion in the Optical Disk Drives case, finding that the Commission breached the appellants’ rights of defense, but that the fines imposed should nevertheless stand.[1]
Facebook Offers Commitments To Address Competition Concerns in the Online Advertising Sector
On June 3, 2021, the French Competition Authority (the “FCA”) launched a public consultation to assess the adequacy of the commitments (the “Commitments”) offered by Facebook Inc., Facebook Ireland Ltd, and Facebook France (together, “Facebook”) as part of the FCA’s investigation into allegedly abusive online advertising practices by Facebook.
Sabre Corporation v Competition and Markets Authority
On 21 May 2021, the CAT dismissed Sabre’s challenge of the CMA’s decision to block its proposed acquisition of Farelogix.
Courts Endorse CMA’s Broad Discretion in Merger Cases
The Competition Appeal Tribunal (CAT) and Court of Appeal have upheld decisions of the Competition and Markets Authority (CMA) in two significant merger cases. These judgments endorse both the CMA’s assertive approach to establishing jurisdiction over transactions with limited UK nexus and its policy of imposing global hold separate orders over both parties in completed mergers, and underline the broad discretion that the courts will allow the CMA in deciding how to carry out merger investigations.
FCJ Confirms Narrow MFN Clauses as Anticompetitive
On May 18, 2021, the FCJ annulled a 2019 decision of the Düsseldorf Court of Appeal (“DCA”) and found the “narrow” most favored nation (“MFN”) clauses used by the hotel booking platform operator Booking Holdings (“Booking.com”) to be incompatible with EU and German competition law.[1]
Facebook Inc. v Competition and Markets Authority
On 13 May 2021, the Court of Appeal dismissed an appeal by Facebook, Inc and Facebook UK Limited against a
The General Court Rules on Two Commission State Aid “Tax Ruling” Decisions: Annuls in Amazon, Upholds in Engie
On May 12, 2021, the General Court handed down two judgments on the Commission’s review under EU State aid rules of tax rulings in which the Luxembourg tax authorities had clarified in advance how national taxation provisions will apply to specific companies.
The Commission Proposes a Draft Regulation to Tackle Potential Distortions Caused by Foreign Subsidies
Background
On May 5, 2021, the Commission proposed a draft regulation to tackle potential distortions in the internal market caused by foreign subsidies (“Draft Regulation”).[1]