Following a public consultation launched in July 2019,[1] the Commission adopted a guidance document[2] on the protection of confidential information in proceedings for the private enforcement of EU competition law based on the Antitrust Damages Directive (“ADD”).[3] The Confidentiality Guidance is intended for use by national courts to ensure consistency across Member States regarding access to and the protection of confidential information disclosed in private enforcement proceedings. The Communication is not binding and does not modify the rules applicable in different Member States, but rather outlines a number of measures and tools national courts may employ to help protect confidential information.
The Court of Justice Clarifies the Scope of the Commission’s Inspection Powers in Antitrust Proceedings
On July 16, 2020, the Court of Justice affirmed the judgement of the General Court in the Nexans v Commission, which upheld the Commission’s decision in the Power Cables cartel case.[1] In its judgment, the Court of Justice clarified the scope of the Commission’s inspection powers in antitrust proceedings under Article 20 of Regulation No. 1/2003.
Commission Seeks Feedback on Aspen Commitments To Reduce Cancer Medication Prices Addressing Concerns Over Excessive Pricing
Commission Publishes 2019 Annual Activity Report
On July 9, 2020, the Commission published its annual report on competition policy, setting out the Commission’s main policy and legislative initiatives, as well as key decisions adopted in 2019.[1]
Dortmund Regional Court on Group Liability for Cartels Damages
On July 8, 2020, the Dortmund Regional Court for the first time considered a group liability of all companies forming an economic unit for cartel damages.[1] The court concluded—in line with the Court of Justice of the European Union’s (“CJEU”) recent case law—that the broader notion of an “undertaking” (in the sense of the economic unit) under EU law also applies in damages actions under national law.
The Commission Invites Feedback on the 1997 Market Definition Notice
On June 26, 2020, the Commission opened a public consultation on the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of the relevant product and geographic market in competition cases.[1] Until October 9, 2020, anyone interested may visit the Commission’s website (here) and submit comments and respond to the Commission’s questionnaire about the relevance, effectiveness, efficiency, coherence, and value of the Notice as a guidance instrument.
Supreme Court Rejects Mastercard and Visa Appeal on Liability but Allows “Pass On” Appeal
On 17 June 2020, the Supreme Court handed down a much anticipated judgment concerning the default multilateral interchange fees (MIFs) set by Mastercard and Visa (together, the Appellants).[1]
The Commission Investigates Apple’s Rules Governing the Distribution of Third-party Apps and Services on iOS Devices
On June 16, 2020, the Commission launched four formal investigations into Apple’s business practices. Three of the investigations seem to follow the same theory of harm and zero in on contract terms that Apple imposes on developers wishing to distribute apps through the App Store on Apple devices, and whether Apple has been using those terms to disadvantage app developers that compete against Apple’s own apps.[1]
The Commission Publishes Its Decision to Fine Qualcomm for Abuse of Dominant Position
On June 8, 2020, the Commission published its decision to fine U.S. based chipset producer Qualcomm a total of €997 million for abusing its dominant position by offering payments to Apple under the condition that Apple purchases from Qualcomm all LTE chipsets for iPhones and iPads.[1] This is the first time the Commission issued a decision on exclusivity payments since the Court of Justice’s ground-breaking Intel judgment in 2017.[2] Qualcomm’s appeal against the decision is pending before the General Court.[3]
Advocate General Kokott Opines on Pharma Reverse-payment Settlement (Lundbeck)
On June 4, 2020, AG Kokott advised the Court of Justice to confirm the General Court’s judgment upholding the Commission’s decision of June 19, 2013 (“the Opinion”). The aforementioned decision imposed fines of €146 million on Lundbeck and five other generic drug manufacturers (“generics”) for patent settlement agreements that prevented the sale of rival versions of Lundbeck’s antidepressant drug citalopram.[1]