On June 27, 2019, the German Federal Cartel Office (“FCO”) published its Annual Report 2018 as well as its biennial Activity Report 2017/2018.[1] Andreas Mundt, the President of the FCO, pointed out that the FCO has a clear digital agenda with a focus on the digital economy and the protection of consumer rights, which it will continue to pursue this year.
The Commission Opens an Investigation Into Broadcom and Seeks To Impose Interim Measures for the First Time in 18 Years
On June 26, 2019, the Commission opened a formal investigation into whether Broadcom’s contractual requirements, IP practices, and technological developments relating to TV and modem chipsets infringed Article 102 TFEU.
CMA Publishes Merger Remedy Evaluation
In June 2019, the CMA published its Merger Remedy Evaluations Report (the Report) – the latest in a series of case evaluations conducted to develop the CMA’s expertise, policy, and practice on merger remedies. The Report notes that its findings will be “used to inform the way in which the CMA approaches remedy design and implementation in subsequent cases.” The Report contains useful guidance for parties on the types of remedies that the CMA is prepared to accept or may require.
The Online Platform Regulation: Codifying Disclosure Obligations for Online Intermediation Services and Search Engines
On June 14, 2019, the European Council adopted the “Regulation on promoting fairness and transparency for business users of online intermediation services” (the “Regulation”).[1] The Regulation seeks to address a range of issues in online search and intermediation platform-to-business relationships. It is the first piece of EU legislation to do so.
DCA Finds Narrow MFN Clauses Compatible With Competition Law
On June 4, 2019, the Düsseldorf Court of Appeals (“DCA”) annulled the FCO’s 2015 decision prohibiting hotel booking platform operator Booking Holdings (“Booking.com”) from using narrow most favored nation (“MFN”) clauses.[1] The DCA’s decision aligns the German position with that of other European national competition authorities (“NCAs”). However, new causes of divergence—stemming from legislative interventions—are already emerging.
The Inspection Générale Des Finances and the Conseil Général de L’éConomie Publishes a Report on EU Competition Policy and Industrial Strategy
On June 2, 2019, the Inspection générale des finances and the Conseil général de l’économie published a report on the EU competition policy and industrial strategy (the “Report”). The Report was commissioned by the Ministry of Economy and Finance in December 2018 and aimed at assessing EU competition policy in the context of the 2019 European elections. The Report highlights the necessity to reshape the procedures and legal instruments used by the European Commission, in particular in merger control, to answer a number of criticisms raised by the French and German governments following the decision of the European Commission to prohibit the Alstom- Siemens merger on February 6, 2019.[1] The Report states that competition policy seems to be applied more strictly in Europe than elsewhere, including China, and that the European Union’s strategic and industrial interests should be given more consideration in competition decisions.
The General Court Rejects KPN’s Challenge to Vodafone/Liberty Global Joint Venture
On May 23, 2019, the General Court rejected KPN’s attempt to annul the Commission’s conditional approval of Vodafone’s and Liberty Global’s joint venture in the Netherlands.[1]
The French Competition Authority Fines the Akka Group €0.9 Million for Obstructing Its Investigations During a Dawn Raid
The ICA Clears Sky Italia’s Acquisition of Mediaset Premium’s DTT Platform R2 Subject to Remedies
On May 20, 2019, the Italian Competition Authority (the “ICA”) issued a decision in the merger control proceedings opened in connection with Sky Italia S.r.l.’s (“SKY”) acquisition of control over R2 S.r.l. (the “Decision”).[1] Owned by Mediaset Premium S.p.A. (“MP”), R2 S.r.l. (“R2”) provides technical and administrative platform services for broadcasting by means of Digital Terrestrial Television (“DTT”).
The French Conseil Constitutionnel Invalidates the Provisions of the PACTE Law Empowering the Government to Transpose the ECN+ Directive Into French Law
On May 16, 2019, the French Conseil constitutionnel validated most of the provisions of the law on business growth and transformation (“loi relative à la croissance et la transformation des entreprises” or “PACTE law”), but deemed that the provisions relating to the transposition of the ECN+ directive into French law violated the Constitution.