Technology, Media & Communications

Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.

Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]

On November 20, 2020, at the request of Sisvel International Group (“Sisvel”), the Federal Court of Justice (“FCJ”) granted a preliminary injunction against Chinese mobile phone manufacturer Haier Corporation Group (“Haier”).[1] The injunction is another victory for Sisvel in its patent disputes with Haier following a preliminary injunction issued in May 2020.[2] The FCJ used the recent decision as an opportunity to further elaborate on the obligations of patent holders and potential patentees under the Huawei/ZTE jurisprudence of the Court of Justice of the European Union (“CJEU”).[3]

On November 10, 2020, the Commission sent a Statement of Objections (“SO”) to Amazon, alleging that Amazon abused its dominance on the market for provision of marketplace services in France and Germany, by accumulating and using sensitive data of independent retailers to benefit Amazon’s own retail business.[1] On the same day, the Commission announced that the investigation into Amazon’s e-commerce business practices was spun-off into a standalone probe.

On 6 November, the CMA published new draft guidance on jurisdiction and procedure in UK merger cases (Draft J&P Guidance) and on the CMA’s mergers intelligence function. On 17 November, it published new draft guidance on the substantive assessment of mergers in the UK (Draft Substantive Guidance). The draft sets of Guidance incorporate developments in the case law, reflect the evolution of the CMA’s policies and procedures, and take account of changes in the legal framework concerning public interest mergers. Together, they confirm the CMA’s expansive approach to asserting jurisdiction and reinforce a more interventionist and less formalistic approach to assessing mergers, especially in digital markets, that has been evident in the run-up to Brexit.

On October 27, 2020, the FCO decided that it had no objections to the planned joint venture and cooperation between the German newspaper publishers Süddeutsche Zeitung GmbH (“SZ”) and Frankfurter Allgemeine Zeitung GmbH (“FAZ”) relating to the joint commercialization of their national advertising inventory.[1]  Under German law, and in contrast to EU law, potential coordination effects between the parent companies are not already assessed as part of the merger control process relating to the creation of the joint venture, but are reviewed separately under the restrictive practices provisions of the ARC.[2]

On 15 October 2020, the Competition and Markets Authority (CMA) revoked a £300,000 penalty it had imposed on JD Sports Fashion plc for breach of an interim enforcement order (IEO) issued in connection with JD Sports’ completed acquisition of Footasylum plc. The penalty was withdrawn “[i]n light of issues raised on appeal.” This is the first time that a CMA procedural fine has been revoked or overturned on appeal. On 19 and 20 October 2020, the Competition Appeal Tribunal (CAT) heard Facebook’s appeal against the CMA’s refusal to grant a derogation from an IEO issued in connection with Facebook’s completed acquisition of GIPHY, Inc. This article considers potential implications of these cases for future UK mergers.

On October 8, 2020,[1] the Paris Court of Appeals dismissed the appeal brought by Google against an interim measures decision issued by the FCA on April 9, 2020 in favor of publishers unions Syndicats des éditeurs de la presse magazine and Alliance de la presse d’information générale, and news agency Agence France Presse.[2] It thereby approved the FCA’s third interim order against the tech giant in a decade. Pending the FCA’s decision on the merits, the Court of Appeals’ order addresses Google’s refusal to engage in negotiations with news publishers and agencies to determine an adequate remuneration for the exploitation of their copyright-related rights.

On October 7, 2020 the Commission accepted commitments offered by Broadcom to address concerns relating to the sale of chipsets used in TV set-top boxes (“STBs”) and in internet modems.[1] This marks the end of a case that unusually combined the use of interim measures and the commitments procedure.[2] The Commission may view this case as a blueprint to achieving expedited resolutions of antitrust investigations in technology markets and beyond.