On July 8, 2020, the Dortmund Regional Court for the first time considered a group liability of all companies forming an economic unit for cartel damages.[1] The court concluded—in line with the Court of Justice of the European Union’s (“CJEU”) recent case law—that the broader notion of an “undertaking” (in the sense of the economic unit) under EU law also applies in damages actions under national law.
FCO Approves Acquisition of Lovoo by Parship and Elite Partner
On July 6, 2020, the FCO approved the acquisition of online dating platform provider The Meet Group Inc. (USA), active on the German market through its mobile dating app Lovoo GmbH (“Lovoo”), by the ProSiebenSat.1 Media SE (“ProSiebenSat.1”) group, which owns online dating platforms from Parship and Elite Partner.[1]
The Commission Invites Feedback on the 1997 Market Definition Notice
On June 26, 2020, the Commission opened a public consultation on the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of the relevant product and geographic market in competition cases.[1] Until October 9, 2020, anyone interested may visit the Commission’s website (here) and submit comments and respond to the Commission’s questionnaire about the relevance, effectiveness, efficiency, coherence, and value of the Notice as a guidance instrument.
German Federal Court of Justice Provisionally Finds Facebook’s Data Collection Practices Abusive
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision.[1] The FCJ disagreed with the FCO’s determination of an abuse based on a violation of data protection law, but instead examined Facebook’s data usage exclusively under competition law.
The Paris Court of Appeals Orders Orange To Pay Over €180 Million in Follow-on Antitrust Damage Claim
On June 17, 2020, the Paris Court of Appeals (“the Court”) ordered Orange and its subsidiary Orange Caraïbe to pay (jointly and severally) €181.5 million in antitrust damages and €68 million in interest to rival Digicel (formerly Bouygues Telecom Caraïbe) as compensation for the Orange group’s anti-competitive behavior across several markets in the French West Indies.[1] The Court’s decision overturns a 2017 first instance ruling by the Paris Commercial Court.[2]
The Commission Investigates Apple’s Rules Governing the Distribution of Third-party Apps and Services on iOS Devices
On June 16, 2020, the Commission launched four formal investigations into Apple’s business practices. Three of the investigations seem to follow the same theory of harm and zero in on contract terms that Apple imposes on developers wishing to distribute apps through the App Store on Apple devices, and whether Apple has been using those terms to disadvantage app developers that compete against Apple’s own apps.[1]
The Commission Publishes Its Decision to Fine Qualcomm for Abuse of Dominant Position
On June 8, 2020, the Commission published its decision to fine U.S. based chipset producer Qualcomm a total of €997 million for abusing its dominant position by offering payments to Apple under the condition that Apple purchases from Qualcomm all LTE chipsets for iPhones and iPads.[1] This is the first time the Commission issued a decision on exclusivity payments since the Court of Justice’s ground-breaking Intel judgment in 2017.[2] Qualcomm’s appeal against the decision is pending before the General Court.[3]
The French Competition Authority Publishes a Study on the Impact of E-commerce on Competition Policy
On June 5, 2020, the French Competition Authority (“FCA”) published a study on the growth of e-commerce and its impact on competition policy. This publication provides an overview of the lasting changes triggered by the development of online sales, the impact of such changes on the analytical framework used by the FCA and the types of anticompetitive conducts that may arise as a result. The study is part of a broader reflection led by the FCA on the challenges raised by antitrust enforcement in the digital sector.[1]
Council of State Quashes TAR Lazio Judgment That Overturned the ICA Decision Imposing Commitments on Sky After the Withdrawal of Its Notification of the Acquisition of R2
In a judgment issued in a simplified form on June 4, 2020,[1] the Council of State quashed the TAR Lazio judgment that had overturned the ICA decision of May 20, 2019, concerning the acquisition of sole control of R2 S.r.l. (“R2”) by Sky Italia S.r.l. (“Sky”).[2] The judgment was given on the merits of the case although it was adopted within the interim phase of the proceedings, pursuant to Article 60 of the Italian Administrative Proceedings Code. The parties were not previously informed of the Council of State’s decision to provide its final judgment in this phase, based on a temporary rule introduced during the Covid-19 emergency that enables the court to omit any advanced notice of this decision.
The Commission Launches Consultations on New Market Investigation Tool and Digital Platforms Regulation
On June 2, 2020, the Commission published two inception impact assessments[1] and two public consultations which address two new policy initiatives: (1) a new market investigation tool (“new competition tool”);[2] and (2) a regulatory instrument that would ex ante govern large online platforms that act as gatekeepers with significant network effects in the European Union’s internal market.[3]