Abuse

On January 26, 2022, the Council of State confirmed on appeal the annulment by the TAR Lazio[1] of a decision in which the ICA found that Società Iniziative Editoriali S.p.A. (“SIE”), the publisher of L’Adige, the main daily newspaper in the area of Trento, abused its dominant position in the daily newspaper market in that geographic area (the “Decision”).

On January 26, 2022, the Criminal Chamber of the French Cour de cassation (the French Supreme Court) has ruled for the first time that companies’ internal documents summarizing or forwarding outside counsel’s legal advice in connection with anticipated litigation are protected by the French legal privilege (secret professionnel).  The French case law is therefore gradually moving closer to the EU one.

On January 26, 2022, the General Court partially annulled the Commission’s decision imposing a €1.06 billion fine on Intel for abusing its dominant position through the granting of exclusivity- conditioned rebates.[1] The General Court found that the Commission had not established to the requisite legal standard that the rebates were capable of having, or were likely to have, anticompetitive effects.[2]

On January 26, 2022, the Council of State[1] upheld a TAR Lazio judgment rejecting an application brought by Società Green Network S.p.A. (“GN”)[2] for annulment of an ICA decision concerning an alleged violation of Article 102 TFEU (the “Decision”).[3]

On January 26, 2022, the Criminal Chamber of the French Cour de cassation (the French Supreme Court) has ruled for the first time that companies’ internal documents summarizing or forwarding outside counsel’s legal advice in connection with anticipated litigation are protected by the French legal privilege (secret professionnel).  The French case law is therefore gradually moving closer to the EU one.

On January 19, 2022, the General Court ordered the Commission to pay default interest on the excess amount of a fine paid by Deutsche Telekom. The interest relates to a €31 million fine the Commission imposed on Deutsche Telekom in October 2014 for infringing Article 102 TFEU by implementing margin squeezing practices in the Slovak broadband market.

In the 2021 edition of this memo, we wrote that antitrust in 2020 received more political and media attention than at any recent time. 2021 beat that standard in multiple ways, and 2022 looks to continue that trend. In addition to continuing the major tech cases brought under the Trump administration, 2021 saw unprecedented levels of legislative activity in antitrust (both federal and state), competition policy taking a leading position across federal agencies and startling new approaches at the Federal Trade Commission (FTC) in particular – new approaches that, while they haven’t yet produced a wave of new enforcement actions, have required changes in thinking about and approaching antitrust issues. We expect these trends to accelerate in 2022.…

On January 5, 2022, France’s top civil court ruled that the question of jurisdiction in the case opposing pharmaceutical company Roche and the French Competition Authority (“FCA”) in respect of the communication campaign led by the FCA in the Avastin/Lucentis case was particularly complex, and decided to refer it to the Tribunal des conflits to be settled.

On December 22, 2021, the German Federal Cartel Office (“FCO”) published its annual review for 2021.[1]  As done already on the occasion of the presentation of its Annual Report 2020/2021,[2] 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.