Jurisdictions

On July 14, 2022, Advocate General Rantos delivered his opinion in Unilever on two important questions referred to the Court of Justice:[1] (i) whether companies linked by contractual ties could constitute a “single economic unit”; and (ii) whether the Court of Justice’s ruling in Intel, that antitrust agencies must examine evidence put forward by the defendant that conduct is not capable of foreclosing equally efficient competitors, applies to practices beyond the exclusivity rebates considered in Intel.[2]

On July 14, 2022, the Commission invited comments on Amazon’s proposed commitments, offered under Article 9 of Regulation 1/2003, in two investigations concerning practices that allegedly advantaged its own services on its online marketplace, contrary to Article 102 TFEU. The invitation for comments is open until September 9, 2022.

Background

On July 13, 2022, the French Competition Authority (“FCA”) published an interim document for public consultation on competition in the cloud computing sector as part of a sector inquiry launched in January 2022.[1]  The FCA’s investigation seeks to delineate the relevant markets for cloud computing services, identify actors that may enjoy “particular positions”[2] on the market, and assess practices that could hinder competition on the merits in an industry projected to expand in France by 14% annually to reach €27 billion by 2025.[3]  The consultation closed on September 19, 2022, and the FCA has announced its final conclusions for early 2023.[4]

On 30 June 2022, the EU institutions reached political agreement on a new regulation which will allow the European Commission to control non-EU government subsidies given to businesses active in the EU (the “Regulation”).

On July 12, 2022, the Commission fined metal packaging producers Crown and Silgan €31.5m for breaching Article 101 TFEU by exchanging sensitive information and coordinating their commercial strategies for the sale of metal cans and closures in Germany over a three-year period.[1] The products concerned were metal lids for glass jars, coated with lacquers containing bisphenol A (“BPA”) or BPA-free lacquers and metal cans coated with BPA-free lacquers. These products were predominantly used to package foods, such as vegetables, fruit, meat, and fish.

On July 7, 2022, Advocate General Rantos delivered his Opinion in Lietuvos geležinkeliai v Commission, Lithuanian Railways’ appeal against a General Court judgment partially upholding a decision by the Commission finding that it had infringed Article 102 TFEU by removing 19 km of train tracks.[1] The Commission concluded that this conduct prevented a major customer from switching to Latvian Railways’ rival transportation services.

Introduction

The UK Competition and Markets Authority (CMA) has recently published a Discussion Paper and accompanying Evidence Review on “Online Choice Architecture” (OCA). This provides a helpful overview of the CMA’s approach to analysing choice architecture, recognising that some practices are likely to be harmful to consumers but others may be beneficial.

On July 6, the French Competition Authority (“FCA”) published its annual report for the year 2021.[1] In particular, the report highlights (i) the key figures of the FCA activity in 2021, (ii) the reinforced investigative powers of the FCA and (iii) the roadmap for 2022-2023.

The UK Government’s response to its consultations on ‘Reforming competition and consumer policy’ (April 2022) confirmed the Government’s proposals to give the Competition and Markets Authority (CMA) enhanced consumer law enforcement powers.