On January 28, 2021, the Court of Justice upheld the General Court’s ruling that the Commission’s request for information (“RFI”) issued during its predatory pricing investigation of Qualcomm was necessary and proportionate.[1] The judgment further strengthens antitrust authorities’ broad discretion in deciding on the scope of RFIs.
A New Theory of Harm and an Unprecedented Enforcement Action: The Commission Flexes Its Muscles in Novelis/Aleris
On January 27, 2021, the Commission published its decision to conditionally approve Novelis’ acquisition of Aleris, two suppliers of flat-rolled aluminum sheets.[1]
The Commission pushed the boundaries of its own powers in merger control proceedings, both in terms of substance and procedure. With respect to substance, the Commission introduced in its decision a new theory of harm for the competitive analysis of transactions, particularly with respect to markets affected by significant capacity constraints. From a procedural standpoint, the Commission adopted far-reaching measures to enforce the commitments that had been offered– and eventually infringed–by the parties to the transaction.
The French Competition Authority Publishes a Study on Professional Associations
In connection with the forthcoming transposition of Directive No. 2019/1 (the “ECN+ Directive”), which exposes professional associations to higher fines for anti-competitive practices, the French Competition Authority (“FCA”) has published a study on how competition law applies to professional associations and made a number of practical recommendations.[1]
The Court of Justice Expands the Rebuttable Presumption of Decisive Influence in Cartels Cases
On January 27, 2021,[1] the Court of Justice confirmed a 2018 General Court judgment,[2] upholding a 2014 Commission decision which found Goldman Sachs jointly and severally liable, together with its former subsidiary Prysmian, for Prysmian’s participation in a cartel. The judgment strengthens the parental liability doctrine with potential implications for financial investors.
One-size-Fits-all: The Ethylene Decision Confirms the Commission’s Practice to Apply a 10% Fine Uplift to Purchaser Cartels
On January 22, 2021, the Commission published the non-confidential version of its July 2020 settlement decision, fining three purchasers of ethylene[1] a total of €260 million for infringing Article 101 TFEU.[2] The case is only the second purchaser cartel sanctioned by the Commission under the 2006 Fining Guidelines, after its Car battery recycling decision.[3]
Game Over: Valve and PC Video Game Publishers Fined for “Geo-blocking” Practices
On January 20, 2021, the Commission imposed fines totaling €7.8 million on Valve, the owner of the video gaming platform Steam, and five PC video game publishers[1] for breaching Article 101 TFEU. The Commission found that the companies prevented gamers from activating certain PC video games purchased from sellers in eight Central and Eastern European Member States, where prices are generally lower than in other Member States (so-called “geo-blocking”).[2] This decision is a reminder of the Commission’s strict stance on cross-border sales restrictions.
The Court of Justice: Bid-rigging Cartels End With the Signing of the Tender Contract
On January 14, 2021, the Court of Justice held that a bid-rigging infringement[1] ends when the essential characteristics of the tender contract, in particular the amount to be paid for the works that are the subject of the tender contract, have been definitively agreed.[2] This is the moment when the successful bidder and the contracting authority conclude the tender contract, regardless of whether the payment instalments are made, or the works are completed, after this date.
The Commission Approves London Stock Exchange’s Acquisiton of Refinitiv, Subbject to Access Remedies: A (Likely) First in the Industry
On January 13, 2021, the Commission conditionally approved the acquisition by the London Stock Exchange Group (“LSEG”) of Refinitiv, following an in-depth Phase II investigation.[1] The decision likely marks the first-ever access commitment in a merger decision approved by the Commission in the financial sector.[2]
The Commission’s Initiative on Shielding Collective Bargaining From Antitrust Scrutiny
On January 6, 2021, the Commission published an inception impact assessment[1] on its latest policy initiative: allowing for more collective bargaining under EU antitrust rules to improve working conditions for self-employed individuals, in particular in relation to digital platform workers (e.g., food delivery services).
The Court of Milan Rejects a Request for an Expert’s Preliminary Assessment of Damages Based on the 2017 Google Search (Shopping) Decision of the European Commission
On January 4, 2021, the Tribunale di Milano (the “Court of Milan”) rejected a request for an expert’s preliminary assessment of damages in a civil action brought by 7 Pixel s.r.l. (“7 Pixel”) against Google LLC (“Google”, together with 7 Pixel, the “Parties”).[1] The Court of Milan rejected Pixel’s attempt to use a swift settlement-like procedure on the basis of Article 696-bis of the Italian Code of Civil Procedure, which allows the judge to order an expert’s report providing an upfront assessment of the damages.