On June 8, 2021, the FCO published its draft “Guidelines for the premature deletion of an entry in the Competition Register due to self-cleaning”[1] as well as its draft “Practical guide on filing an application for premature deletion”.[2] In addition, it opened public consultations on the drafts. Interested parties were invited to submit their comments by July 20, 2021.
The Milan Court of Appeal Declares Inadmissible as Manifestly Unfounded an Appeal Against a Judgment by the Court of Milan That Dismissed a Follow-on Damages Action Brought Against the Italian Electronic Communications Sector’s Incumbent
On June 7, 2021,[1] the Milan Court of Appeal (the “Court of Appeal”) declared inadmissible an appeal brought by Irideos S.p.A. (“Irideos”; formerly, Enter S.r.l., “Enter”) against a Court of Milan judgment that had entirely dismissed a follow-on damages action against Telecom Italia S.p.A. (“TIM”) for alleged abuse of dominance in the provision of wholesale access services[2] found by the Italian Competition Authority (the “ICA”) in 2013, on the ground that the appeal did not have a reasonable chance of being upheld, pursuant to Articles 348-bis and ter of the Italian Code of Civil Procedure (the “CCP”).
The French Competition Authority Fines Google €220 Million for Favoring Its Own Advertising Technologies
On June 7, 2021, the French Competition Authority (“FCA”) imposed a fine of €220 million on Google Inc. (now Google LLC), Alphabet Inc., and all Alphabet Inc.’s subsidiaries (together, “Google”), for allegedly abusing its dominant position in the market for advertising servers for website and mobile application publishers.[1]
Facebook: The New Kid on the EC Block
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]