On September 6, 2022, the Commission prohibited the acquisition by Illumina, a U.S.-based company specializing in genomic sequencing, of GRAIL, a U.S.-based start-up developing early cancer detection tests based on genomic sequencing.[1] The decision marks the first Commission review and prohibition of a transaction falling below the EU Merger Regulation (“EUMR”) and national notification thresholds.
On August 26, 2022, the Commission published the results of an external market study on the distribution practices of hotels in the EU, with a particular focus on parity clauses.[1] The study was conducted in 2021, after several years of close scrutiny by national competition authorities,[2] as well as the introduction of national legislation restricting the use of such clauses in several Member States.[3]
On August 23, 2022, the Commission published its full decision in Video Games, fining Valve (the owner of the online PC gaming platform Steam) and five PC video game publishers (Bandai Namco, Capcom, Focus Home, Koch Media, and ZeniMax) a total of €7.8 million for restricting cross-border sales of PC video games.[1] The Commission found that the agreement between Valve and the video game publishers, which prevented gamers from activating certain PC videogames purchased in eight Member States where prices are generally lower than in other Member States (so-called “geo-blocking”), breached Article 101 TFEU.
In the second episode of Cleary Gottlieb’s Antitrust Review podcast, a panel of Cleary Gottlieb partners discuss the achievements to
Cleary Gottlieb partners Nicholas Levy, Paul Gilbert, and Jackie Holland and associate Courtney Olden co-authored the “UK” chapter of the
In a significant judgment rendered on July 13, 2022 (“Judgment”), the EU’s General Court validated the position taken by the European Commission (“EC”) in a March 2021 Guidance Paper encouraging national competition authorities (“NCAs”) to use Article 22 of the EU Merger Regulation (“EUMR”) to refer transactions to the EC that do not meet national merger control thresholds, but which they believe may threaten to significantly affect competition within the EU.
On July 18, the European Council approved the final text of the DMA, marking the final step before the DMA enters into force. This followed the European Parliament approving, on July 5, the final text of the Digital Markets Act (DMA), by 588 votes to 11. The DMA is likely to enter the EU’s Official Journal in October, which means the behavioural rules will kick in early-to-mid 2024.
On July 14, 2022, Advocate General Rantos delivered his opinion in Unilever on two important questions referred to the Court of Justice:[1] (i) whether companies linked by contractual ties could constitute a “single economic unit”; and (ii) whether the Court of Justice’s ruling in Intel, that antitrust agencies must examine evidence put forward by the defendant that conduct is not capable of foreclosing equally efficient competitors, applies to practices beyond the exclusivity rebates considered in Intel.[2]
On July 14, 2022, the Commission invited comments on Amazon’s proposed commitments, offered under Article 9 of Regulation 1/2003, in two investigations concerning practices that allegedly advantaged its own services on its online marketplace, contrary to Article 102 TFEU. The invitation for comments is open until September 9, 2022.
On 30 June 2022, the EU institutions reached political agreement on a new regulation which will allow the European Commission to control non-EU government subsidies given to businesses active in the EU (the “Regulation”).