On September 22, 2023, the European Commission (“the Commission”) re-adopted parts of its 2009 Intel decision and imposed a fine of €376 million on Intel for abusing its dominance in x86 central processing units (“CPUs”) through naked restrictions. The re-adopted decision follows the General Court’s 2022 renvoi judgment, which overturned the €1.06 billion fine that the Commission had originally imposed on Intel in 2009. It marks the latest—but certainly not the last—development in a saga spanning over 20 years.
On 9 August 2023, the Competition and Markets Authority (CMA) and Information Commissioner’s Office (ICO) published a joint position paper on online choice architecture (OCA), titled “Harmful design in digital markets: How Online Choice Architecture practices can undermine consumer choice and control over personal information”. The paper forms part of the agencies’ work under the Digital Regulation Cooperation Forum, which brings together multiple UK regulatory bodies to advance their combined thinking on regulatory issues in the digital economy.
On July 27, 2023, the General Rapporteur of the French Competition Authority (“FCA”) confirmed the notification to Apple of a statement of objections (“SO”) concerning potential anticompetitive practices in the sector for the distribution of mobile applications, likely to have consequences on several related markets for advertising and consumer services.
On June 29, 2023, the Court of Justice ruled on questions referred by the Lisbon Court of Appeals relating to alleged resale price maintenance (“RPM”) by Super Bock, a Portuguese beverage manufacturer. The Court of Justice held, inter alia, that a vertical agreement fixing minimum prices is not necessarily a restriction of competition by object despite its characterization as a “hardcore restriction” under the Vertical Block Exemption Regulation (“VBER”) and, in certain circumstances, the existence of an agreement may be inferred from “explicit or tacit acquiescence” by the distributors to an invitation to comply with minimum resale prices.
On July 4, 2023, the Court of Justice delivered its judgment in Meta Platforms Inc. v. Bundeskartellamt, following a request for a preliminary ruling from the Düsseldorf Higher Regional Court (“Düsseldorf Court”) on the validity of the German Federal Cartel Office (“FCO”) 2019 decision finding that Meta Platforms (“Meta”) abused its dominant position by collecting and processing data without users giving their consent freely. The Court of Justice confirmed that competition authorities can find breach of data protection rules under the General Data Protection Regulation (“GDPR”) where that finding is necessary to establish the existence of an abuse of dominance under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”). The Court of Justice however emphasized that competition authorities are required to consult and cooperate with national supervisory authorities in charge of GDPR enforcement (“GDPR authorities”).
On June 1, 2023, the Commission published revised Research & Development and Specialization Block Exemption Regulations (“R&D BER” and “Specialization BER”, together the “HBERs”) , as well as revised Guidelines on Horizontal Cooperation (“Horizontal Guidelines”). The new HBERs exempt certain agreements from the prohibition of Article 101(1) of the Treaty on the Functioning of the EU (“TFEU”), subject to specific conditions, and accordingly create a so-called “safe harbor” for certain forms of horizontal cooperation. Relatedly, the Horizontal Guidelines aim to guide undertakings in the interpretation and application of the revised HBERs, and thereby in their assessment of “various common types of horizontal cooperation agreements.”
In a ruling dated May 4, 2023, the French Competition Authority (the “FCA”) ordered interim measures against Meta following a complaint by Adloox, in light of suspicions that Meta was abusing its dominant position on the market for online advertising by imposing unfair conditions for accessing its ecosystem, thereby causing serious and immediate harm to both Adloox and other independent ad verification service providers. These interim measures are imposed pending a decision on the merits of the case.
On April 25, 2023, the French Competition Authority (“FCA”) imposed a total fine of €2.95 million on Bongard and the members of its distribution network following a settlement procedure for their participation in two anticompetitive vertical agreements in the bakery and pastry equipment sector.
On February 10, 2023, the French Constitutional Council (“Conseil constitutionnel”) considered that the second sentence of Article L. 464-2, I, paragraph 1 of the French Commercial Code, which provides that the French Competition Authority (“FCA”) may accept commitments in the context of antitrust litigation proceedings, but says nothing about its power to refuse them, complies with the French Constitution and, on this occasion, confirmed that companies can lodge appeals again FCA decisions rejecting suggested commitments.