European Union

On December 16, 2020, the General Court partially annulled the Commission’s decision in the International Skating Union’s Eligibility rules case.[1] The General Court upheld the Commission’s finding that the International Skating Union’s (“ISU”) eligibility rules (“Eligibility Rules”), which prescribed severe penalties on participants of third-party events not authorized by the ISU, were in breach of Article 101 TFEU.

On December 15, 2020, the Commission published its proposal for the Digital Markets Act (“DMA”),[1] which would impose a list of  ex  ante  obligations on designated large online platforms that meet certain thresholds. The proposed DMA aims at preventing practices by large online platforms that, according to the Commission, either fall outside or cannot be effectively addressed by the existing EU competition rules. The DMA would represent a far-reaching expansion of the Commission’s regulatory powers in digital markets, and would significantly increase the regulatory burden on the designated companies.

On December 14, 2020, six years after the adoption of the Damages Directive,[1] the Commission published a report[2] analyzing its implementation across Member States.[3] The Damages Directive was introduced to harmonize the procedural rules for antitrust damages actions.

On December 9, 2020, the Court of Justice annulled the Commission’s decision that accepted Paramount’s commitments to remove from its licensing agreements with broadcasters any obligation that prevents broadcasters from responding to cross-border requests for pay-TV subscriptions (the “Commitments Decision”).[1] The Court of Justice concluded that the Commitments Decision breached the principle of proportionality because it negated contractual rights of Canal+ and other counterparties to Paramount’s licensing agreements who were not involved in the Commission’s proceedings.

On December 8, 2020, the FCA dismissed a complaint by French travel cooperative CEDIV on behalf of 55 member travel agencies against several airlines which denied travellers refunds for their flights, cancelled due to the COVID-19 pandemic (the “Decision”).[1]

Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.

On November 26, 2020, the Commission fined Teva and Cephalon a total of €60.5 million for entering into a pay-for-delay agreement in relation to a sleep disorder drug. This arrangement is alleged to have helped maintain high prices for several years, to the detriment of patients and healthcare systems.[1]

On November 25, 2020, the FCA chose to depart from its long-standing decisional practice on intra- group bidding.[1] Following the European Court of Justice’s ruling in Ecoservice projektai,[2] the FCA concluded that intra-group bids to tenders no longer fall within the ambit of competition law.

On November 18, 2020, the General Court dismissed an appeal by AB Lietuvos geležinkeliai (“Lithuanian Railways”) against a 2017 Commission decision which found that the company had abused its dominant position on the Lithuanian rail freight market by removing a stretch of track connecting Latvia and Lithuania (the “short route”). The Commission found that the conduct prevented one of Lithuanian Railways’ major customers, the Polish stated-owned oil company AB Orlen Lietuva (“Orlen”), from switching transportation services to rival Latvian Railways.[1] The Commission and Lithuanian Railways discussed potential remedies, but failed to reach an agreement. The Commission therefore imposed a fine of €28 million. The General Court partially upheld the Commission decision, reducing the fine from €28 million to €20 million due to the limited territorial scope of the infringement.[2]

On November 10, 2020, the Commission sent a Statement of Objections (“SO”) to Amazon, alleging that Amazon abused its dominance on the market for provision of marketplace services in France and Germany, by accumulating and using sensitive data of independent retailers to benefit Amazon’s own retail business.[1] On the same day, the Commission announced that the investigation into Amazon’s e-commerce business practices was spun-off into a standalone probe.