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] These initiatives are part of the Commission’s wider efforts to modernize EU competition law in an era of digitalization. Stakeholders are invited to submit their comments up until September 8, 2020[4] and the impact assessments are expected to be submitted to the Regulatory Scrutiny Board of the Commission and be finalized in the fourth quarter of 2020.
Implications of the Three/O2 Judgment for EU Merger Control
On May 28, 2020 the General Court overturned Commissioner Vestager’s first prohibition decision, blocking a 4-to-3 merger in the UK
The Commission Publishes Support Studies for the Evaluation of the Vertical Block Exemption Regulation
Following the Commission’s roadmap and launch of the public consultation process,[1] on May 26, 2020, the Commission published the final report[2] with support studies for the evaluation of the Vertical Block Exemption Regulation (the “VBER”).[3] The report is part of the Commission’s evaluation of the VBER, which is set to expire on May 31, 2022.
The Paris Court of Appeals Upholds the French Competition Authority’s (“FCA”) Fining Decision Against Akka Group for Obstructing Dawn Raids
On May 26, 2020, the Paris Court of Appeals confirmed the €0.9 million fine imposed on Akka Group for obstructing dawn raids conducted on its premises, including by breaking seals. This was the second decision issued by the FCA for dawn raid obstruction and the first one for breaking seals.
COVID-19 Update: Time-limits for Merger Control and Antitrust Proceedings Are Gradually Resuming
By Order No. 2020-560 of May 13, 2020, the Government decided not to further postpone the time limits that had been suspended or interrupted since March 12, 2020, despite the extension of the state of health emergency. Consistently, in a press release of May 18, 2020, the French Competition Authority (“FCA”) announced that it would progressively re-instate the statutory time limits that had been interrupted or suspended in light of the state of health emergency. All of these time limits will resume on June 24, 2020 at the latest.[1]
Advocate General Pitruzzella’s Opinion in Groupe Canal+: A Trailer for the First Annulment of Commitments by the Court of Justice?
On May 7, 2020, Advocate General (“AG”) Pitruzzella delivered his opinion on Canal+’s appeal against a 2016 Commission commitment decision in the context of its investigation into the cross-border provision of pay-TV services.[1] AG Pitruzzella concluded that by accepting Paramount’s commitments, the Commission breached the principle of proportionality because they ignored contractual rights of third parties. Should the Court of Justice (the “CJEU”) follow this opinion, the case may lead to the first annulment by the EU’s highest court of a Commission commitment decision since the adoption of Regulation No. 1/2003.
FCJ Rules on FRAND Defense
On May 5, 2020, the Federal Court of Justice (“FCJ”)[1] granted Sisvel International S.A (“Sisvel”) an injunction against the Chinese mobile phone manufacturer Haier Group Corporation (“Haier”) to stop infringing one of Sisvel’s standard essential patents (“SEP”). In its first application of the Court of Justice of the European Union (“CJEU”) Huawei/ZTE judgment,[2] the FCJ clarified the requirement of the patent user’s willingness to license.
DG COMP Responds To The COVID-19 Outbreak (May 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions could raise potential issues under competition law.
The French Competition Authority (“FCA”) Dismisses Molotov’s Complaint Against TF1 and M6
On April 30, 2020, the FCA dismissed Molotov’s complaint of alleged abuse of collective dominance, abuse of economic dependency and anticompetitive agreements against TF1 and M6.
The Commission Doubles Down on Digital Markets
On April 24, 2020, the Commission announced that it is seeking to design and implement specific ex ante[1] and remedy tools[2] for digital markets. This follows earlier efforts related to the creation of a single data market and the proposed European approach towards artificial intelligence unveiled in February 2020.[3]