On May 5, 2020, the Federal Court of Justice (“FCJ”)[1] granted Sisvel International S.A (“Sisvel”) an injunction against the Chinese mobile phone manufacturer Haier Group Corporation (“Haier”) to stop infringing one of Sisvel’s standard essential patents (“SEP”). In its first application of the Court of Justice of the European Union (“CJEU”) Huawei/ZTE judgment,[2] the FCJ clarified the requirement of the patent user’s willingness to license.
Aurubis’ Acquisition of Metallo Unconditionally Approved Despite Initial Buyer Power Objections
On May 4, 2020, the Commission unconditionally approved Aurubis’ proposed acquisition of Metallo, having issued formal objections just a few months earlier, in February 2020.[1] The Aurubis/Metallo decision is noteworthy for two reasons. First, in the last five years, since Margrethe Vestager became Commissioner for Competition, only one other transaction has been unconditionally cleared after the Commission had sent a Statement of Objections to the companies involved, namely Tele2 NL/T-Mobile NL in 2018.[2] Second, in Aurubis/ Metallo, the Commission’s concerns were based on buyer power, a theory of harm that has been rarely applied in the Commission’s merger review practice.
DG COMP Responds To The COVID-19 Outbreak (May 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions could raise potential issues under competition law.
The Commission Doubles Down on Digital Markets
On April 24, 2020, the Commission announced that it is seeking to design and implement specific ex ante[1] and remedy tools[2] for digital markets. This follows earlier efforts related to the creation of a single data market and the proposed European approach towards artificial intelligence unveiled in February 2020.[3]
Mylan’s Tie-up With Pfizer’s Upjohn Division Approved Subject to Remedies
On April 22, 2020, the Commission conditionally approved the joint venture between Mylan and Upjohn, Pfizer’s off-patent branded and generic medicines division, following a Phase I review.[1] The transaction follows a recent stream of large pharma and healthcare transactions approved by the Commission, including the unconditional clearance of Bristol-Myers Squibb’s acquisition of Celgene,[2] and conditional clearances of AbbVie’s acquisition of Allergan,[3] and GSK’s acquisition of Pfizer’s Consumer Health Business.[4]
FCJ Confirms That German Model T&Cs for Online Banking Were Anticompetitive
On April 7, 2020, the FCJ confirmed a FCO decision finding some of the German Banking Industry Committee’s (Deutsche Kreditwirtschaft, “GBIC”) model T&Cs for online banking to be anticompetitive.[1]
The Commission Tests 1997 Market Definition Notice’s “Fit-for-Purpose”
On April 3, 2020, the Commission launched a public consultation to review the adequacy of the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of relevant product and geographic market.[1] This kicks off a six-week process to solicit opinions from anyone interested.
Budapest Bank: Banking on the Importance of the By-effect Assessment
On April 2, 2020, the Court of Justice of the European Union (the “CJEU”) ruled on a 2018 preliminary reference from Hungary’s Supreme Court, vacating on appeal the decision of the Hungarian competition authority. The authority found that an agreement on multilateral interchange fees (“MIFs”) constituted a by-object and by-effect infringement of Article 101 TFEU.[1] The judgment concerns two heavily discussed topics: the notion of restriction of competition by object vs effect,[2] and MIFs.[3]
Ongoing Investigations in Digital Markets
In addition, the Commission continues to actively scrutinize digital platforms, despite the challenges stemming from the COVID-19 pandemic. Three recent developments are noteworthy.
DG COMP Responds To The COVID-19 Outbreak (April 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions continue to raise potential issues under EU competition law.