On December 22, 2021, the German Federal Cartel Office (“FCO”) published its annual review for 2021. As done already on the occasion of the presentation of its Annual Report 2020/2021, the FCO’s President, Andreas Mundt, emphasized again that the protection of competition in the digital economy remains one of the FCO’s top priorities. He underlined that also merger control will continue to serve as a key tool to achieve this goal. In addition, he pointed out that the FCO would welcome powers of intervention also with regard to infringements of consumer rights.
On December 16, 2021, the European Commission officially ‘took note’ of IAG and Globalia’s announcement to terminate their proposed agreement according to which IAG would acquire sole control over Air Europa.
On October 6, 2021, the Court of Justice dismissed eight appeals brought against the 2019 judgments of the General Court, upholding the classification of Spanish tax rules on the amortization of financial goodwill as State aid incompatible with the internal market. The judgments are noteworthy as the Court of Justice, sitting as the Grand Chamber, shed light on the interpretation of the notion of selectivity—one of the cumulative criteria required for a national measure to qualify as State aid contrary to EU law.
On October 6, 2021, the Grand Chamber of the Court of Justice handed down a landmark judgment concerning the issue of downward liability in antitrust follow-on damages claims. While the parental (or upward) liability doctrine has long been established, for the first time, the Court of Justice shed light on whether subsidiaries can be held liable for their parents’ antitrust infringements in both public and private enforcement contexts. The ruling answered this question affirmatively, so long as the subsidiary and the parent company form part of the same undertaking.
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. The approval was obtained during Phase I and is conditioned on third-party access to the infrastructure.
In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale markets for the termination of text messages (“SMS”) and multimedia messages (“MMS”).
On April 10, 2018, the Spanish Supreme Court annulled a judgment of the Spanish High Court, finding an abuse of dominance in a case against Oracle where the Spanish Competition Authority (“CNMC”) had found no infringement. The Supreme Court clarified the scope of whether it was appropriate for the High Court to impose its own reasoning on the CNMC by mandating that it accept the High Court’s view of the facts and law.