CMA merger decisions are subject to judicial review by the Competition Appeal Tribunal (CAT). Challenges to the CMA’s substantive decision-making have, however, generally been unsuccessful. Although the CAT has been willing to intervene on matters of procedural fairness and errors of law, as recent decisions confirm, the CAT is reluctant to intervene in the CMA’s assessment of competitive effects and identification of remedies.
The Court of Justice Confirms the Commission’s Broad Margin of Appraisal in Rejecting Complaints
On March 12, 2020, the General Court confirmed the Commission’s decision to reject a complaint brought by LL-Carpenter (“Carpenter”), a Czech distributor of motor vehicles, against Subaru for alleged anti-competitive conduct. The judgment serves as a reminder of the Commission’s wide discretion to evaluate and reject complaints.
Commission Conditionally Approves Joint Venture Between Telecom Italia and Vodafone to Share Telecoms Towers
On March 6, 2020, the Commission approved Telecom Italia and Vodafone’s acquisition of joint control over INWIT, which will combine the companies’ 22,000 telecommunication towers in Italy.[1] The approval was obtained during Phase I and is conditioned on third-party access to the infrastructure.
Commission Accepts Transgaz’s Commitments To Facilitate Natural Gas Exports To Neighboring Member States
On March 6, 2020, the Commission approved commitments presented by Transgaz, the state-owned operator of Romania’s natural gas transmission system, to address alleged restrictions on gas exports from Romania.[1]
Court of Justice Upholds Commission’s Two Fines Against Marine Harvest for Gun-jumping
On March 4, 2020, the Court of Justice dismissed Mowi ASA (formerly Marine Harvest ASA)’s appeal against two fines for having acquired control over salmon producer Morpol prior to the European Commission’s (the “Commission”) merger control approval.[1] The judgment clarifies the scope of Article 7(2) of the EU Merger Regulation (the “EUMR”), which allows an acquisition of control to be notified after the fact, if it takes place in the context of a public bid. The judgment explains that the exemption does not apply if the public bid follows an initial, separate, transaction which already gave rise to an acquisition of control. The judgment also confirms that the Commission is allowed to impose two separate fines when a transaction is implemented before the merger notification. This article updates our analysis of the General Court judgment as reported in our European Competition Report of Q 4, 2017.
DG COMP Responds to the COVID-19 Outbreak (March 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, and even as lockdown measures are gradually eased, their actions continue to raise potential issues under competition law.
The Commission Fines Meliá €6.7 Million for Restricting Cross-border Sales
On February 21, 2020, the Commission fined hotel group Meliá €6.7 million for restricting cross-border sales through the terms of its hotel accommodation agreements with tour operators.[1] These terms allegedly forced tour operators to discriminate between EEA customers based on their country of residence. The Meliá decision is noteworthy for two reasons. It reiterates the Commission’s strict stance on any measures partitioning the EU Single Market, a theory of harm the Commission has applied frequently in recent years. It also continues the Commission’s now frequent practice of rewarding cooperation in non-cartel cases.
The Commission Unveils New Positions on Data and AI as Part of Its Digital Strategy
On February 19, 2020, the Commission unveiled its strategy to “shape Europe’s digital future.”[1] This strategy identifies three key objectives: invest in technology that works for people (which includes investment in connectivity, discussions over a framework for AI, cybersecurity, and data literacy), develop a fair and competitive economy (which focuses on the creation of a single market for data and the use of competition law policies to level the playing field), and create an open, democratic, and sustainable society.
The Google Shopping Hearing Before The General Court Of The European Union
In a three-day session culminating on St Valentine’s day, the General Court of the European Union (the “General Court”) heard Google LLC’s (“Google”) and the European Commission’s (the “Commission”) arguments in the Google Shopping case.[1] In 2017, the Commission adopted a decision (the “Decision”) fining Google a record-breaking €2.42 billion for abuse of dominance by positioning and displaying its own comparison shopping service (“CSS”),[2] Google Shopping, more favorably in its general search result pages compared to rival CSSs.[3]