Abuse

On October 20, 2022, for the first time, the French Competition Authority used its newly-acquired ability to reject a claim on the basis of enforcement priority and rejected Culture Presse’s claim in relation to an alleged abuse of a dominant position by La Poste in respect of postal stamps distribution.[1] Since the transposition into French law of the ECN+ Directive[2] and pursuant to the second paragraph of Article L. 462-8 of the French Commercial Code, the Competition Authority no longer has an obligation to investigate, and may now, by way of a reasoned decision, reject a complaint where it is not considered an enforcement priority.

On October 11, 2022, the ICA closed an Article 102 TFEU investigation into Mastercard Europe SA (“Mastercard”)’s conduct by accepting the commitments offered by Mastercard relating to its double-tap mandate for contactless payments with co-badged payment cards (i.e., cards that can be used on more than one payment network) (the “Decision”),[1] which precluded retailers operating point-of-sale (“POS”) terminals from accepting single-tap payments from co-badged cards.

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. 

On September 30, 2022, the Council of State upheld the appeals submitted by Sicuritalia S.p.A., Lomafin Sicuritalia Group Holding S.p.A., Italpol Vigilanza S.r.l. and Mc Holding S.r.l. (the “Appellants”),[1] and annulled a decision of the Italian Competition Authority (“ICA”) on alleged bid-rigging in open tender procedures for the provision of private security services in certain Italian regions.[2]

On September 20, 2022, Advocate General Rantos delivered his opinion on the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”)’s request for a preliminary ruling concerning the decision of the Bundeskartellamt (German Federal Cartel Office, “FCO”) which had found that Meta Platforms (“Meta”, formerly Facebook Inc.) abused its dominant position in relation to the collection, processing, aggregation and use of personal data of its users in 2019.[1] The Advocate General concluded that a competition authority may examine, as an incidental question, the compliance of the practices under investigation with the General Data Protection Regulation (“GDPR”) rules, while informing and, where appropriate, consulting the competent supervisory authority on the basis of the GDPR.[2]

On September 14, 2022, the General Court partially annulled the Commission’s 2018 infringement decision which fined Google €4.3 billion for abusing its dominant position by imposing restrictions on Android device manufactures (“OEMs”) and mobile network operators (“MNOs”).[1] The General Court also found that the Commission’s investigation suffered from procedural errors and reduced the fine by €200 million.