On July 15, 2019, the Commission published its annual report on competition policy, setting out the Commission’s main policy and legislative initiatives, and key decisions adopted in 2018.
General Court Rejects Appeals In The Optical Disc Drive Cartels
On July 12, 2019, the General Court rejected five appeals against a 2015 Commission decision imposing a total fine of €116 million on five cartel participants for colluding to rig optical disc drive (“ODD”) procurement tenders organized by Dell and Hewlett-Packard (“HP”).[1] The judgment serves as a reminder of the discretion the Commission enjoys when imposing cartel fines, and the General Court’s tendency to defer to the Commission’s cartel policy.
The Paris Court of Appeals Upholds the FCA’s Decision Against Janssen- Cilag’s Defamatory Practices
On July 11, 2019, the Paris Court of Appeals dismissed most of the pharmaceutical company Janssen-Cilag’s claims in its appeal against the FCA decision fining it for delaying market entry of a generic drug[1], thereby essentially upholding the FCA’s third decision fining a pharmaceutical company for denigrating generic drugs after Sanofi-Aventis[2] and Schering-Plough.[3]
Court of Justice Annuls ICAP’s Cartels Fine Due to the Commission’s Failure to Sufficiently Explain Fine Calculation Methodology
On July 10, 2019, the Court of Justice upheld the General Court’s partial annulment of the Commission’s 2015 decision to fine the UK-based broker, ICAP, €14.9 million for facilitating a cartel in the Yen Interest Rate Derivatives (“YIRD”) market between 2007 and 2010, confirming that the Commission had failed to adequately explain its fine calculation.
GSK’s Acquisition of Pfizer’s Consumer Health Business Cleared Subject to Remedies
On July 10, 2019, the Commission conditionally cleared GlaxoSmithKline’s (“GSK”) acquisition of Pfizer’s Consumer Health Business following a Phase I review.[1] The transaction forms part of GSK’s and Pfizer’s plan to contribute their respective consumer healthcare businesses to a new venture, over which GSK will have sole control.
Hello Kitty Joins the Vertical Restraints Club
On July 9, 2019, the Commission fined Sanrio, a Japanese company that designs, produces and sells “Hello Kitty” products, €6.2 million for breaching Article 101 TFEU by imposing territorial restrictions on cross-border and online sales of merchandising products featuring Hello Kitty and other Sanrio-owned characters. The Commission granted Sanrio a 40% fine reduction in return for its cooperation.[1]
European Champions Debate Continues
On July 4, 2019, France and Germany, joined by Poland, issued a joint call to modernize European competition rules (“Joint Statement”).[1] This follows the publication in February 2019 of a Franco-German Manifesto for a European industrial policy to foster the creation of European champions.[2] The Joint Statement scales back some of the Manifesto’s far-reaching ideas.
The Commission Grants An Exceptional 50% Fine Reduction To Compensate For Protracted Cartels Proceedings
On July 4, 2019, following two losses at the EU Courts, the Commission re-adopted its decision to fine five Italian manufacturers of reinforcing steel bars for a price-fixing cartel. The Commission reduced the fines by an unprecedented 50% due to the length of proceedings spanning almost two decades.
New Guidelines on “Passing-on” of Overcharge and Disclosure of Confidential Information in Cartels Damages Claims
On July 1, 2019, following a one-year public consultation with national courts and other stakeholders, the Commission published new guidelines to assist national judges in estimating the “passing-on” of overcharge in cartel damages claims.[1] The guidelines are the latest step in efforts to develop a forum for antitrust damages litigation throughout Europe, given that these actions are, at present, typically confined to a small number of national jurisdictions (the U.K., the Netherlands, and Germany).
The Commission Fines Canon €28 Million For Gun-Jumping
On June 27, 2019, the Commission imposed two fines totaling €28 million on Canon in the context of its acquisition of Toshiba Medical Systems Corporation (“TMSC”). The first fine of €14 million was levied for Canon’s failure to notify the Commission prior to the implementation of the transaction in violation of Article 4(1) of the EU Merger Regulation (“EUMR”). The second fine of €14 million, was imposed as a result of Canon implementing the transaction prior to obtaining clearance, breaching Article 7(1) EUMR.