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 The penalty was withdrawn “[i]n light of issues raised on appeal.” This is the first time that a CMA procedural fine has been revoked or overturned on appeal.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.
The Paris Court of Appeals Confirms the French Competition Authority Decision Imposing Interim Measures on Google To Protect Copyright-related Rights of Online News Publishers
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.
Commission Accepts Broadcom’s Commitments for TV Set-top Boxes and Modem Chips
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.
The French Tribunal Des Conflits Confirms the Jurisdiction of the Paris Court of Appeals To Rule on Confidentiality Waivers in Public Versions of French Competition Authority Decisions
On October 5, 2020, the French Tribunal des Conflits confirmed that the Paris Court of Appeals had jurisdiction to rule on the appeal lodged by Google against an FCA interim measures decision, in which Google alleged that the FCA had breached its right to the protection of business secrets by publishing information that had previously been granted confidential treatment by the investigation services.[1]
General Court Clarifies the Role of Privacy Protections in Commission Investigations
October 2020 saw important developments with respect to the procedural framework surrounding the Commission’s evidence-gathering powers. A General Court judgment on the appropriateness of dawn raids at three French supermarket chains and the Court’s interim order regarding the Commission’s ongoing probe into Facebook’s data practices both have practical implications for companies under investigation.
Brand-gating: FCO Investigates Cooperation Between Amazon and Apple
In October 2020, the Federal Cartel Office (“FCO”) initiated an investigation against Amazon’s and Apple’s agreement to exclude non-authorized dealers from selling Apple products on the Amazon Marketplace.[1] While the FCO has not published a press release about the proceedings yet, the investigation is expected to focus on whether combatting product piracy justifies this practice.
Court Denies Spanish NCA Status as “Court or Tribunal” for Making Preliminary References (Anesco)
On September 16, 2020, the Court of Justice ruled on the interpretation of the concept of “court or tribunal” within the meaning of Article 267 TFEU.[1] The Court of Justice held the reference for a preliminary ruling inadmissible, for lack of the referring Spanish competition authority (“CNMC”) constituting a “court or tribunal” for the purpose of Article 267 TFEU.
The French Cour de Cassation Upholds the Paris Court of Appeals’ Judgment in the TDF Abuse of Dominance Case
On September 16, 2020, the French Cour de cassation upheld the Paris Court of Appeals’ judgment, which had largely confirmed the French Competition Authority’s (the “FCA”) decision in the TDF case.
The Cour de Cassation Quashes the Paris Court of Appeals’ Decision in the SFR/Orange Case on the Fixed Telephony Market for Secondary Homes for the Second Time
On September 16, 2020, the French Cour de cassation annulled a judgment of the Paris Court of Appeals for the second time in the saga between SFR and Orange. While the Cour de cassation confirmed the existence of a relevant market for fixed telephony for secondary homes, on which Orange is dominant, it ruled that the Paris Court of Appeals had failed to properly assess Orange’s allegedly abusive conduct.
The French Competition Authority Reserves the Right To Refer to the European Commission Transactions That Do Not Reach the National Notification Threshold
On September 15, 2020, Margaret Vestager announced that the European Commission would, as of mid-2021, accept referrals from national competition authorities for transactions that do not reach any national notification thresholds under Article 22 of Council Regulation (EC) No 139/2004 (“Article 22”).[1] This provision enables a national competition authority to request that the European Commission examine a transaction that does not meet the European Union notification thresholds, but would affect trade between Member States and threaten to significantly affect competition.