In the latest installment of Cleary Gottlieb’s Antitrust Review podcast, host Nick Levy welcomes Bill Kovacic, a legend in the
Turning up the Heat: the Commission’s Interest in Labor Markets
On May 3, 2024, the European Commission (“Commission”) published a Policy Brief (“Brief”) on antitrust in labor markets. The Brief reflects the Commission’s growing interest in restrictive labor market agreements, in particular wage-fixing and no-poach agreements.[1]
Commission Powers Up FSR Enforcement: Launches Two In-Depth Investigations Into Chinese Solar Photovoltaic Producers
On April 3, 2024, the European Commission (“Commission”) launched two in-depth investigations into tenders by Chinese solar photovoltaic suppliers under the EU Foreign Subsidies Regulation (“FSR”).[1] The investigations relate to a public procurement procedure launched on September 27, 2023 by a Romanian contracting authority (Societatea Parc Fotovoltaic Rovinari Est S.A.) for the design, construction, and operation of a photovoltaic park with an installed capacity of 454.97 MW.[2]
The Court of Justice Clarifies National Limitations Periods and Upholds Parties’ Right To Compensation In Follow-on Damages Actions
On April 18, 2024, the Court of Justice delivered its judgement on the questions referred to it by the Prague Municipal Court in the Heureka v. Google case.[1] Heureka Group (“Heureka”), a Czech comparison shopping service company (“CSS”) brought an action before the Municipal Court of Prague in the Czech Republic, seeking compensation from Google for the harm it allegedly suffered as a result of Google’s abusive behavior as part of the Google Shopping decision. The referring court sought clarification about whether Article 10 of Directive 2014/104 (the “Damages Directive”) [2] and/or Article 102 TFEU[3] preclude the effects of a national law that requires parties seeking compensation for competition infringements to file suit within three years of the occurrence of the harm. The Court of Justice ruled that Article 102 TFEU and the principle of effectiveness require the suspension of limitation periods during the Commission’s investigation. The limitation period will only start running when the injured party knows the information necessary to bring its claim, which is presumed to be as of the date of the publication of the summary of the Commission’s infringement decision in the Official Journal of the EU. Additionally, the injured party, Heureka in this instance, can then rely on the findings of a Commission decision under appeal, as it is binding in nature, unless and until it has been annulled.
Advocate General Szpunar finds FIFA rules on transfer of players contrary to Articles 101 and 45 TFEU
On April 30, 2024, Advocate General Szpunar delivered his opinion recommending the Court of Justice to respond to the Court of Appeal of Mons (Belgium) that rules of the Fédération Internationale de Football Association (“FIFA”) restricting the transfer of players among football clubs are contrary to Article 101 and Article 45 TFEU.[1]
When an Englishman’s Home is not his Castle: High Court reverses CAT Ruling that a “higher order of scrutiny” is Required for the CMA to Obtain a Domestic Warrant
The Competition and Markets Authority (CMA) declared victory as the High Court confirmed the standard of evidence needed to secure warrants to search domestic premises. The Competition Appeal Tribunal (CAT) had refused to grant a domestic search warrant to the CMA in connection with a cartel investigation. It held in a judgment of October 2023 (the CAT Judgment) that a “higher order of scrutiny” [1] was required for domestic warrants than for business premises warrants, in order to protect individuals’ rights to a private and family life under Art. 8 of the European Convention on Human Rights (ECHR).
The CMA Enhances Engagement with Phase 2 Merger Decision-Makers and Raises De Minimis Threshold
The Competition and Markets Authority (CMA) has adopted a revised phase 2 investigation process and published updated Guidance on the CMA’s Jurisdiction and Procedure and Exceptions to the Duty to Refer. The changes come after a period of extensive consultation and stakeholder engagement. The new rules will apply to all investigations formally opened on or after 25 April 2024 that are subsequently referred to phase 2.
CMA Publishes Update on its Initial Review into AI Foundation Models
On 11 April 2024, the CMA published an update paper (the Update Paper) in relation to its initial review of AI Foundation Models (FMs). An accompanying technical update report (the Technical Update Report) was published on 16 April 2024, providing further detail on market developments and feedback from stakeholder engagement. These updates follow the CMA’s September 2023 initial report into the same topic (the Initial Report).
FCA publishes feedback statement on data asymmetry between Big Tech and financial services firms
On 22 April 2024, the Financial Conduct Authority (FCA) published a Feedback Statement on the potential competition impacts from data asymmetry between Big Tech firms and firms in financial services. On the same day, Nikhil Rathi, the FCA’s Chief Executive, delivered a speech at the Digital Regulation Cooperation Forum on ‘Navigating the UK’s Digital Regulation Landscape’.
Fashion Retailers Agree Not To Mislead Customers With Environmental Claims as the CMA Issues Warning Against Greenwashing
On 27 March 2024, the UK Competition and Markets Authority (CMA) announced that fashion retailers ASOS, Boohoo and George at Asda (the Retailers) has signed undertakings to ensure that the environmental claims they make are accurate and clear (the Undertakings). The announcement was accompanied by an open letter to the fashion retail sector (the Letter). The Letter warns businesses to act in accordance with the CMA’s 2021 Green Claims Code and to take note of the Undertakings, or risk incurring significant monetary penalties once the Digital Markets, Competition and Consumers Bill comes into force (see our previous blog posts here, here and here). The CMA also indicated that it will be updating the Green Claims Code with specific guidance for the fashion sector.