On February 25, 2021, the Court of Justice held that the Commission and the Slovak competition authority did not infringe EU law when conducting two parallel investigations against Slovak Telekom.[1] Because the two investigations pertained to different product markets, regulators at the European and national level were entitled to proceed in parallel and eventually impose two distinct fines on Slovak Telekom.
The French Cour de Cassation Confirms the Validity of FCA Dawn Raids Authorized on the Basis of Another Competition Authority’s Request for Investigative Measures
In a ruling dated February 17, 2021, the Cour de cassation dismissed an appeal formed against an order dated June 2019, in which the Paris Court of Appeals confirmed that the FCA could validly initiate an investigation and carry out dawn raids on the basis of a request for inspection issued by the competition authority of another EU Member State.
The Commission Accepts Commitments Offered by Aspen in Its First Decision on Excessive Pricing in the Pharmaceutical Sector
On February 10, 2021, the Commission accepted commitments offered by South African pharmaceutical company Aspen and ended one of its rare investigations into excessive pricing (and reportedly the first in the pharmaceutical sector).[1] The decision provides guidance on how the Commission evaluates excessive pricing of off-patent medicines and how to remedy potential concerns.
Volvo Secures Unconditional Clearance of Fuel-cell Joint Venture With Daimler
On February 5, 2021, the Commission unconditionally cleared the creation of a joint venture (“JV”) between the Volvo Group (“Volvo”) and Daimler Truck AG (“Daimler”).[1] The JV will be active in the relatively novel, but rapidly evolving, hydrogen fuel-cell technology sector, which promises a “green” future in particular for transport.[2]
The Court Of Justice Confirms The Commission’s Wide Discretion In Defining The Scope Of A Request For Information
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.