European Union

On March 14, 2019, the ECJ held that the determination of persons liable for damages for an EU competition law infringement is governed by EU law, not national law.[1] The ECJ clarified that an acquirer company may be held liable for private damages caused by a cartel participant even after the cartel participant was subsequently liquidated, provided that the acquirer took over the assets that constituted the business. The ECJ agreed with Advocate General Wahl[2] that the principle of economic continuity should apply not only in public, but also in private antitrust enforcement.

On March 13, 2019, Spotify filed a complaint against Apple with the European Commission, alleging a breach of Article 102 TFEU. The complaint touches on many of the issues surrounding digital platforms that have been a key focus for the Commission in recent years. In particular, there are parallels with the allegations in Google Shopping, that Google abused its platform dominance in general search to benefit its comparison shopping service.

On March 7, 2019, the Commission accepted the commitments offered by Disney, NBCUniversal, Sony Pictures, Warner Bros., and Sky in the pay-TV investigation.[1] The Commission’s concerns related to alleged restrictions on the cross- border sale of pay-TV services in film licensing agreements between the studios and Sky UK.[2] Paramount, also part of the investigation, had already offered commitments to address the Commission’s concerns in April 2016, which the Commission accepted in July 2016.[3]

On March 5, 2019, the Commission fined car safety equipment suppliers Autoliv and TRW €368 million for breaching Article 101 TFEU by taking part in two infringements consisting of an exchange of commercially sensitive information and illegal coordination in relation to the supply of car seatbelts, airbags, and steering wheels to Volkswagen and BMW.[1]

On July 2, 2014, the Commission conditionally cleared Telefónica Deutschland’s acquisition of E-plus, KPN’s German mobile telecommunications business, which combined the third and fourth largest mobile network operators in Germany. The acquisition was characterized as a 4-to-3 merger resulting in three mobile operators of a similar size.[1]

On February 14, 2019, the European Court of Human Rights (“ECtHR”) found in SA-Capital Oy v. Finland, that the Finnish Supreme Administrative Court had not violated SA-Capital’s right to a fair trial under Article 6 of the European Convention on Human Rights by partially relying on hearsay evidence in finding the existence and the scope of a cartel.[1] In particular, given the evidentiary complexity of cartel infringements, the ECtHR concluded that national competition authorities may use hearsay to the extent their findings do not solely depend on it.[2]

On February 14, 2019, the Commission published a decision, adopted on December 7, 2018,[1] accepting commitments offered by TenneT, an electricity transmission system operator (“TSO”), to remove restrictions on, and in the long term also to increase, the maximum capacity of the electricity interconnector between Germany and West Denmark (“the DE-DK1 interconnector”).