In addition, the Commission continues to actively scrutinize digital platforms, despite the challenges stemming from the COVID-19 pandemic. Three recent developments are noteworthy.
DG COMP Responds To The COVID-19 Outbreak (April 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 continue to raise potential issues under EU competition law.
CAT Confirms High Threshold for Review of CMA Merger Decisions
CMA merger decisions are subject to judicial review by the Competition Appeal Tribunal (CAT). Challenges to the CMA’s substantive decision-making have, however, generally been unsuccessful. Although the CAT has been willing to intervene on matters of procedural fairness and errors of law, as recent decisions confirm, the CAT is reluctant to intervene in the CMA’s assessment of competitive effects and identification of remedies.
Statements by Concurrent Sectoral Regulators
Financial Conduct Authority (FCA) and Payment Systems Regulator (PSR)
The FCA and PSR announced that they support the CMA’s guidance on its approach to business cooperation in response to COVID-19 under competition law and will take a consistent approach to their competition law enforcement activity in the financial services sector. This means that these regulators will not enforce competition law in a way that impedes financial services providers from working together to provide essential services to consumers during the COVID-19 pandemic.
The French Competition Authority Suspends Procedural Time Limits Due to COVID-19
On March 27, 2020, the French Competition Authority (“FCA”) published a press release announcing that a number of applicable deadlines for merger review and antitrust proceedings will be adapted further to legal order no. 2020-306 of March 25, 2020 relating to the extension of time- limits during the state of public health emergency.
Judicial Procedure Updates (COVID-19)
COVID-19 and Civil Procedure Rule Updates. On 25 March 2020, Civil Procedure Rule Practice Direction 51Y (PD51Y) came into force, to facilitate video and audio hearings for the duration of the pandemic.
The French Competition Authority Imposes Record Fine on Apple for Vertical Practices and Abuse of Economic Dependence
On March 16, 2020, the FCA imposed a €1.1 billion fine on Apple for entering in anticompetitive agreements with its distributors and abusing the situation of economic dependency of its network of Apple Premium Resellers, issuing by far its highest fine ever. The decision follows a lengthy investigation initiated in 2012, when the then-largest French Apple Premium Reseller eBizcuss accused Apple of abusing its dominant position.
The TAR Lazio Upholds the ICA Decision to Fine the Members of a Cartels for the Assignment of Broadcasting Rights for Football Matches in Countries Other Than Italy
On March 16, 2020, the TAR Lazio delivered its ruling in the judicial review proceedings concerning the 2019 ICA decision finding that, from 2008 to 2015, the MP Silva Group, the IMG Group, and the B4 Capital Group coordinated their bids in the procedures for the assignment of international audiovisual rights for the broadcasting of the matches of the football seasons relating to the Serie A and B, the Italy Cup and the Italian Super Cup, in countries other than Italy.[1]
Commission Conditionally Approves Joint Venture Between Telecom Italia and Vodafone to Share Telecoms Towers
On March 6, 2020, the Commission approved Telecom Italia and Vodafone’s acquisition of joint control over INWIT, which will combine the companies’ 22,000 telecommunication towers in Italy.[1] The approval was obtained during Phase I and is conditioned on third-party access to the infrastructure.
The TAR Lazio Quashes the ICA Decision Imposing Commitments on Sky After Its Withdrawal of the Notification of the R2 Acquisition
On March 5, 2020, the TAR Lazio annulled 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”), including the measures imposed on Sky.[1]