On March 26, 2021, the Commission adopted a Communication on the application of the referral mechanism pursuant to Article 22 of the EU Merger Regulation (“EUMR”)[1] and announced a further simplification of merger control proceedings,[2] effective immediately.
Essential Facilities Doctrine: No Need To Prove Indispensability for Abuse Through Unfair Access Terms
On March 25, 2021,[1] the Court of Justice ruled that to demonstrate abuse, where a dominant undertaking has already offered access to its infrastructure but on unfair terms, it is not necessary to show that access to the infrastructure is indispensable within the meaning of the Court of Justice’s Bronner essential facilities doctrine.
DCA Refers Facebook Case to the CJEU
On March 24, 2021, the DCA stayed the proceedings regarding Facebook’s appeal against the FCO’s decision of 2019 prohibiting Facebook to combine data from different sources and referred a number of questions to the CJEU.[1] The CJEU is now called upon to consider the relevance infringements of the General Data Protection Regulation (“GDPR”) under competition law.
Consumer’ Association v Qualcomm Incorporated
On 18 March 2020, the CAT published an application by the UK Consumers’ Association (Which?) to commence collective
CMA publishes new Merger Assessment Guidelines
On 18 March, the CMA published new Merger Assessment Guidelines (the New Guidelines). Under the New Guidelines, the CMA will adopt a more flexible approach to the substantive assessment of mergers, particularly in digital markets. The New Guidelines also suggest the CMA will look to intervene in mergers where market shares are low or where the evidence of anticompetitive effects is slim.
The French Competition Authority Dismisses Interim Measures Request Against Apple
On March 17, 2021, the French Competition Authority (hereinafter, the “FCA”)[1] rejected the request for interim measures of various players in the online advertising industry concerning the introduction by Apple Inc. (“Apple”) of the App Tracking Transparency (“ATT”) feature as part of the upcoming changes in its iOS 14 operating system.
The French Conseil d’Etat Recognizes Right of Employee Representatives to Appeal Against a French Competition Authority’s Merger Clearance Decision
On March 9, 2021, the French Conseil d’Etat ruled that the employee representative body of the target company could appeal the FCA’s decision to clear the transaction. However, the Conseil d’Etat dismissed the appeal on the merits.[1]
Deutsche Post Commits to Abandon Rebate System for Newspaper Post
On February 26, 2021, the FCO closed its investigation of Deutsche Post AG’s (“Deutsche Post”) rebate scheme for addressed newspapers and magazines (“newspaper post”) after Deutsche Post adjusted its pricing policies.[1]
The Court of Justice Confirms Parallel Antitrust Investigations at European and National Level Are Possible if Different in Scope
On February 25, 2021, the Court of Justice held that the Commission and the Slovak competition authority did not infringe EU law when conducting two parallel investigations against Slovak Telekom.[1] Because the two investigations pertained to different product markets, regulators at the European and national level were entitled to proceed in parallel and eventually impose two distinct fines on Slovak Telekom.
Epic Games v. Apple and Epic Games v. Google
On 22 February 2021, the Competition Appeal Tribunal (CAT) ruled that Epic Games (Epic) could not pursue a claim against Apple in the UK. It allowed some aspects of a similar claim brought by Epic against Google to be heard in the UK on the ground that permission is not required to serve claims in the CAT against the Irish anchor defendants.