On May 9, 2019, the German Federal Administrative Court (“FAC”) ruled that access to the preparatory notes (so-called “opinions”) of the rapporteurs of the FCO’s decision divisions under the German Freedom of Information Act is restricted, because public access to the rapporteurs’ opinions would jeopardize the decision divisions’ deliberation process.[1] The FAC thus ultimately confirmed the FCO’s denial of a journalist association’s access request to information on one of the FCO’s merger assessments, including access to the rapporteur’s opinions.
Media Saturn and Others v Toshiba; Media Saturn and Others v Panasonic
These two linked claims seek to recover damages incurred as a result of alleged anti-competitive conductconcerning the sale of cathode ray tubes (“CRTs”).
CMA’s Use of Director Disqualification Powers Reflects Renewed Focus On Individual Responsibility
In May 2019, the CMA obtained competition disqualification undertakings (“CDUs”) from three individuals for involvement in a cartel relating to
FCO Concludes Sector Inquiry Into Comparison Websites
On April 11, 2019, the Federal Cartel Office (“FCO”) published its final report on its sector inquiry into comparison websites.[1] This inquiry marked the first time that the FCO had analyzed a sector on the basis of its consumer protection competencies that have only recently been created. It clearly emphasized the agency’s ambition to expand its enforcement authority also into this area. Overall, the FCO came to the conclusion that several comparison portals infringed consumer rights in particular by providing misleading or incomplete information to consumers.
The General Court Dismisses Qualcomm’s Challenge of a Commission Request for Information
On April 9, 2019, the General Court dismissed Qualcomm’s application for annulment of a Commission decision of March 31, 2017, requiring Qualcomm to provide information in the context of an antitrust probe.
The Commission Issues a Statement of Objections Over Geo-Blocking Arrangements for Video Games
On April 5, 2019, the Commission sent a Statement of Objections (“SO”) to Valve, the owner of the video game distribution platform Steam, as well as five video game publishers[1] whose video games are distributed by Valve. The SO sets out the Commission’s concerns that the companies have prevented customers from purchasing PC video games online from sellers in certain Member States in Central and Eastern Europe[2] where prices are lower (so-called “geo-blocking”).
Recent Jurisprudence on Prima Facie Evidence vs. Factual Presumption in Cartels Follow-on Damages Actions
On December 11, 2018, the German Federal Court of Justice (“FCJ”) held that, at least in relation to quota fixing and customer allocation cartels, plaintiffs could no longer rely on prima facie evidence to establish that a cartel infringement led to causal damage.[1] The FCJ accepted, however, a factual presumption (tatsächliche Vermutung)— softer compared to prima facie evidence—that cartels would lead to an overcharge, and held that such a presumption was of “high indicative significance”. Since then, lower courts have rendered a number of judgments and struggled with applying the new evidentiary standard in practice.
Enforcement by Numbers
As the charts below show, enforcement by concurrent competition agencies has increased substantially since the ERRA came into force.[1]
Five Years of “Enhanced Concurrency” in UK Antitrust
In November 2013, David Currie – then Chairman of the CMA – identified the low volume of competition cases in regulated sectors: “These sectors account in total for some 25% of the economy. They are also typically characterised by monopolistic or oligopolistic market structures. This might suggest the need for more, rather than less, competition enforcement than in other parts of the economy.”[1]
The Hearing Officer for Competition Proceedings Publishes the Activity Report for 2017-2018
On March 22, 2019, the European Commission’s Hearing Officer published his Activity Report for 2017-2018.[1] The Report provides key statistics on the Hearing Officer’s activity as well as a useful summary of case law on various procedural issues.