On October 18, 2023, the General Court delivered its judgment in Clariant v. Commission. It upheld the Commission’s settlement decision in the Ethylene case, following an appeal by Clariant, who argued that the Commission erred in: (i) applying a 50% recidivism multiplier to Clariant in circumstances where the previous infringement in which it had participated was not a purchasing cartel, but rather a sales cartel; and (ii) applying a 10% fine increase (to all participants) on account of the infringement being a purchasing cartel, to ensure adequate deterrence. The General Court also rejected a counterclaim lodged by the Commission, in which the Commission sought to increase the fine imposed on Clariant by removing its 10% settlement discount, on the basis that Clariant had accepted to be fined in the context of settlement proceedings.
On October 5, 2023, Advocate General Rantos delivered his opinion on two questions referred to the Court of Justice by the Portuguese Competition, Regulation and Supervision Court (the “referring court”). The referring court seeks clarification on whether a ‘standalone’ exchange of information between competitors can be classified as a restriction by object under Article 101 TFEU, and whether that classification is permitted where it has not been possible to establish any uncertain or procompetitive effect on competition resulting from the exchange. The case gives the Court of Justice an opportunity to clarify its recent evolution from a broad and formalistic interpretation of the concept of a restriction by object to a narrower, more pragmatic interpretation of that concept.
On 31 July 2023, the Competition and Markets Authority (CMA) issued an infringement decision finding that Leicester City Football Club and JD Sports had colluded to restrict competition in the sales of Leicester City-branded clothing, including replica kit, in the UK. Leicester City FC and its parent companies reached a settlement agreement with the CMA, under which they will pay a fine of £880,000. JD Sports had reported the infringement to the CMA, in exchange for immunity from financial penalties.
In a ruling dated June 28, 2023, the Cour de cassation upheld the Paris Court of Appeals’ judgment which had reversed the 2010 decision of the French Competition Authority fining 11 banks for an anticompetitive pricing agreement in relation to check processing. The Cour de cassation ruled that the FCA had improperly qualified the agreement as a “by object” infringement when no sufficient degree of harmfulness to competition was proven. This ruling puts an end to a 13-year old judicial saga.
On 25 May 2023, the High Court ordered that an individual disqualified by the Competition and Markets Authority (CMA) may continue as the director of Cantillon, a construction company fined £1.92 million for its involvement in a bid-rigging cartel. The High Court’s Order—which was opposed by the CMA—is the fourth time since 2019 that the Court has granted an exemption from a director disqualification undertaking obtained by the CMA.
On April 12, 2023, the French Competition Authority (“FCA”) imposed a €3.5M fine on market intelligence company Ellisphere for price-fixing and market-sharing practices, marking the first successful application of the watchdog’s leniency regime since it was reformed under the ECN+ Directive.
On February 28, 2023, the UK’s Competition and Markets Authority (“CMA”) demonstrated its thought leadership in the integration of sustainability and competition policy by publishing draft guidance (“Draft UK Guidelines”) on the application of competition rules to agreements between competitors to tackle environmental sustainability objectives.
On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022. 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.