On February 16, 2023, the Paris Court of Appeals overturned the French Competition Authority (the “FCA”) decision which
Advocate General Rantos’ Opinion In Autoridade Da Concorrência and ECP (Case C-331/21) On The Notion Of Potential Competition And The Distinction Between Restrictions “By Object” And “By Effect”
On March 2, 2023, Advocate General Rantos delivered his opinion on the questions referred to the Court of Justice by the Lisbon Court of Appeals (referring court) in Autoridade da Concorrência and EDP.[1] The referring court seeks clarification on whether an association agreement between undertakings operating in different product markets can constitute an agreement with an anticompetitive object for the purposes of Article 101 TFEU,[2] and subject to what conditions.
Commission Revamps its Article 102 Guidance and Will Adopt new Guidelines in 2025
On March 27, 2023, the European Commission (the “Commission”) announced it would revise its 2008 Guidance on enforcement priorities regarding Article 102 TFEU[1] (the “2008 Guidance”). The Commission has amended its 2008 Guidance in a Communication and Annex. It has also launched a consultation seeking feedback on the adoption of new Guidelines on exclusionary abuses of dominance that the Commission intends to adopt in 2025 after publishing a draft in 2024. While the amendments in the 2008 Guidance bring it closer to the case law, they show the Commission seeking more discretion and leeway in its investigations.
The French Cour de cassation confirms that the Paris Court of Appeals can rule on the legality of the French Competition Authority’s “name and shame” practices
On March 23, 2023, the French Cour de cassation ruled that requests to restrict the French Competition Authority’s (“FCA”) communication actions relating to a fining decision qualify as applications for interim relief under Article L.464-8 of the French Commercial Code and therefore can validly be brought before the Paris Court of Appeals.[1]
The French Competition Authority declines its jurisdiction to review injunctions imposed in a final decision
On February 15, 2023, the French competition authority (the “FCA”) deemed inadmissible Interflora’s application for review of injunctions imposed in 1986 and 2001 decisions (the “Decision”).
FCO’s Annual Report 2021/2022: The Digital Economy And Antitrust Enforcement In Times of Crisis
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.
2023 Update: U.S. Antitrust Sets Sail into Uncharted Seas
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.
The Commission Continues to Narrow In On Digital Platforms
December saw the Commission nearing the end of its investigations against Meta’s and Amazon’s alleged self-preferencing practices.
Advocate General Rantos Gives Red Cards To The Super League And The General Court in European Super League and International Skating Union
On December 15, 2022, Advocate General Rantos delivered his opinions in the European Super League (“ESL”) and International Skating Union (“ISU”) cases. Both cases concern the application of EU competition rules to sport governing bodies. Advocate General Rantos’ opinions suggest that sport governing bodies may prohibit third-party events and impose sanctions on the relevant participants as long as the governing bodies’ decisions are inherent and proportionate to achieving a legitimate objective relating to the “specific nature of sport” and the “European Sports Model.”[1]
The ICA finds Bancomat’s proposed new remuneration model for circular withdrawals anticompetitive
On November 30, 2022, the Italian Competition Authority (the “ICA”) closed the proceedings initiated on December 1, 2020 against Bancomat S.p.A. (“Bancomat”). Bancomat is an Italian company that operates the Bancomat and PagoBancomat circuits, which can be used to make withdrawals at Automated Teller Machines (“ATMs”) as well as cashless payments through so-called Points of Sale. In its decision, the ICA found that Bancomat’s proposed new remuneration model for circular withdrawal (the “Proposal”), brought to attention of the ICA by Bancomat itself on October 22, 2022, infringed Article 101 of the Treaty on the Functioning of the European Union (the “TFEU”).[1]