On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1]  Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First,  the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine.  Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis.  Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights. 

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. 

After publishing its preliminary finding in February 2022[1], the German Federal Cartel Office (“FCO”) recently prohibited the Deutsche Lufthansa AG group (“Lufthansa”) from terminating longstanding cooperation agreements with Condor Flugdienst GmbH (“Condor”).[2]  Under the cooperation agreements, Lufthansa is obliged to provide feeder flights to Condor’s long-haul passengers.

In September 2022, the General Court partially annulled the European Commission’s 2018 Google Android decision, which fined Google €4.3 billion for abuses of dominance relating to apps it offers for its Android mobile operating system (“OS”).[1]  The Court also found that the Commission’s investigation suffered from procedural errors.  It reduced the fine by €200 million.

On September 26, 2022, the Federal Ministry for Economic Affairs and Climate Action published a draft of the Competition Enforcement Act which will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time (“Draft 11th Amendment”).[1]  The aim of the Draft 11th Amendment is to strengthen the Federal Cartel Office’s (“FCO”) enforcement powers beyond the existing enforcement of antitrust and abuse of dominance violations. 

The UK Competition Appeal Tribunal (CAT) on 8 August 2022 set aside a £17.9 million fine against price comparison website Compare The Market, criticising the Competition and Markets Authority’s (CMA) legal and evidential assessment of the case.  The CAT found that the CMA’s “anecdotal evidence[1] failed to prove that Compare The Market kept home insurance premiums artificially high by using most favoured nation clauses (MFNs) in its contracts with insurance providers.  The CMA has said it is disappointed with the CAT’s ruling and is considering its options, including a potential appeal.

The UK Competition and Markets Authority (CMA) last week fined pharmaceutical companies Pfizer and Flynn £63 million and £6.7 million for engaging in excessive pricing.  In the CMA’s view, the companies charged unfairly high prices for Phenytoin capsules, a genericised anti-epilepsy drug, in violation of competition law.

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.