On February 14, 2019, the European Court of Human Rights (“ECtHR”) found in SA-Capital Oy v. Finland, that the Finnish Supreme Administrative Court had not violated SA-Capital’s right to a fair trial under Article 6 of the European Convention on Human Rights by partially relying on hearsay evidence in finding the existence and the scope of a cartel.[1] In particular, given the evidentiary complexity of cartel infringements, the ECtHR concluded that national competition authorities may use hearsay to the extent their findings do not solely depend on it.[2]
FCO Orders Facebook To Change Its Data Collection Practices
On February 6, 2019, the German Federal Cartel Office (“FCO”) prohibited Facebook’s practice of collecting and processing user data from Facebook’s own services as well as from third-party services without users’ freely given consent.[1] After an investigation of nearly three-years, the FCO found that this practice amounted to an exploitative abuse of a dominant position. For the first time, the FCO considered compliance with data protection rules in its abuse of dominance analysis.
Mr David Henry v Office of Communications
On 6 February 2019, the CAT ruled that it had no jurisdiction to review Ofcom’s decision to approve the BBC’s
FCO And FCA Close Joint Probe Into Agreement Between Ad Blocker Eyeo and Google
The FCO and the Austrian Federal Competition Authority (“FCA”) closed a joint probe of an agreement between the German-based ad blocker company Eyeo and Google after the companies had changed certain terms of their whitelisting contract.[1] Following complaints about Eyeo’s ad blocker Adblock Plus, the FCA had launched an investigation in Austria in 2013. FCO subsequently joined the proceedings in May 2016.
Commissioner Vestager Reiterates Concerns Over Online Platforms and Announces “More Cases to Come”, as Welll as Plans To Hire Experts and Buy Software for Speedier Assessment of Cases in the Digital Sector
During a speech delivered at the Paris Institute of Political Studies (Sciences Po) on January 21, 2019, Commissioner Vestager indicated that more cases concerning online platforms are to be expected.
Gruner + Jahr’s Abandons Renewal of National Geographic License
On January 21, 2019, publishing company Gruner+Jahr (“G+J”) withdrew its notification of the proposed re-acquisition of the license to publish the German edition of “National Geographic” following the FCO expressing competition concerns.[1]
Advocate General Kokott Issues an Opinion on the Scope of Application of the Private Damages Directive
The Spanish Supreme Court Confirms the Annulment of a €120 Million Fine Imposed by the CNMC on Telefonica, Vodafone and Orange for Abuse of Dominance in the Wholesale Markts for Termination of SMS and MMS
In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale markets for the termination of text messages (“SMS”) and multimedia messages (“MMS”).[1]
Vivendi/Editis
On January 2, 2019, the FCA authorized the acquisition by the Vivendi Group of the Editis Group, which owns 13 literary publishing houses operating the brands Fleuve, Julliard, Le Cherche Midi, Plon, Robert Laffont, Bordas and Nathan, among others.[1]
2018 Review
CMA Activity
As in 2017, the CMA leadership devoted much of 2018 to preparing for Brexit – publishing draft regulations, revising guidance, and increasing the CMA’s workforce.