European Union

On November 10, 2022, in a judgment on a request for a preliminary ruling on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and the scope of its rules on evidence production, the Court of Justice confirmed that national courts could require defendants to disclose evidence that did not exist at the time of the court proceedings (“ex novo evidence”)— by compiling or classifying knowledge, information or data in their possession— rather than to merely produce documents that already exist.[1] In this instance, the applicants were seeking price data to quantify the artificial price increase caused by a cartel. The Court of Justice considered that the need to ensure the effective implementation of EU competition law could justify this interpretation, provided that national courts limited disclosure of ex novo evidence to necessary and proportionate requests. This ruling will increase the burden of follow-on litigation on companies and, in particular, the time and costs of carrying out disclosure.

On November 8, 2022, the Commission published its draft Revised Market Definition Notice (the “Revised Notice”) for consultation in view of a formal adoption in the third quarter of 2023.[1] The revision of the current 1997 Market Definition Notice (the “Original Notice”) was initiated in April 2020, with a particular focus on improved analysis of global and digital markets.[2] In addition to guidance on these issues, the Revised Notice largely confirms the principles set in the Original Notice, integrates as additional background recent EU decisional practice and preserves the Commission’s margin of discretion in market definition assessments.

On November 8, 2022, the Court of Justice set aside the General Court’s judgment in the Fiat State aid case.[1] In doing so, the Court of Justice effectively annulled the Commission decision which found that the tax ruling granted to the Fiat Chrysler group by the tax authorities of Luxembourg was an unlawful tax break of €20–30 million.[2] The Court of Justice affirmed the supremacy of national law in corporate taxation and rejected the Commission’s attempt to develop an EU-wide arm’s length principle as a standard of review for Member States’ tax decisions under State aid rules. The judgment is a setback for the Commission’s policy of using State aid rules to target allegedly unfair tax deals for multinational companies.

On October 27, 2022, the Digital Services Act (“DSA”) was published in the Official Journal of the EU, marking its formal adoption.[1] The DSA sets out new rules that apply to the distribution of user-generated online content. Unlike the DMA, which seeks to ensure the contestability of digital markets, the DSA seeks to improve user safety online and ensure accountability of platforms for the content that they transmit, host or publicly disseminate.

On October 25, 2022, the Commission published additional guidance on its Leniency Policy in the form of Frequently Asked Questions (“FAQs”) to further encourage companies to seek immunity or leniency from cartel fines.[1]

In September 2022, the General Court partially annulled the European Commission’s 2018 Google Android decision, which fined Google €4.3 billion for abuses of dominance relating to apps it offers for its Android mobile operating system (“OS”).[1]  The Court also found that the Commission’s investigation suffered from procedural errors.  It reduced the fine by €200 million.

On October 20, 2022, Advocate General Kokott issued her opinion on the Commission’s appeal of the General Court’s landmark May 2020 judgment overturning the Commission’s prohibition of the Three/O2 UK mobile telecommunications merger.[1] The Opinion advises the Court of Justice to uphold the Commission’s appeal on all main grounds and refer the case back to the General Court for reconsideration.