Policy & Procedure

On October 11, 2021, the FCO published two new guidelines, the leniency guidelines and guidelines on the setting of antitrust fines.[1]  Both guidelines reflect revisions to the Act against Restraints of Competition (“ARC”) resulting from the 10th Amendment of the ARC earlier in 2021.[2]  While the leniency program was legally anchored only by the 10th Amendment of the ARC, the FCO’s new leniency guidelines largely correspond to the former guidelines as issued in 2000 and updated in 2006.  In contrast, the FCO’s new fining guidelines substantiate several important methodical changes introduced to the law by the 10th Amendment of the ARC and implement judicial practice which has in the past differed considerably from the FCO’s principles in some cases.

The UK competition authorities, and the Competition and Markets Authority in particular, have broad powers to investigate markets as a whole and impose remedies without any finding of unlawful conduct. The use of these powers has fluctuated over time but is again increasing. Over the last year, the CMA has opened three market studies, investigating the markets for Music Streaming, Children’s Social Care, and Mobile Ecosystems.

On September 10, 2021, the European Commission published a policy brief on “Competition Policy in Support of Europe’s Green Ambition” (the “Policy Brief”).[1] A year after Executive Vice-President Margrethe Vestager called for a greener EU competition policy,[2] the Policy Brief summarizes the key takeaways from the stakeholder consultation and sets out the Commission’s ambitions for a greener competition policy. The key message being that “a green competition policy still has to be – well, a competition policy.”[3]

On September 2, 2021, Advocate General (“AG”) Bobek issued his opinions on two preliminary ruling requests, Bpost[1] and Nordzucker (the “Opinions”),[2] recommending to harmonize the principle of ne bis in idem—otherwise known as the double jeopardy test—in the EU, as it applies to all branches of EU law. AG Bobek suggested that application of the ne bis in idem principle should be based on a “triple identity” test: namely, of the offender, the relevant facts, and the protected legal interest.[3]

On September 1, 2021, the Monopolies Commission published its 8th Energy Sector Report focusing inter alia on competition for electric vehicle charging points.[1]  Just one month later, the German Federal Cartel Office (“FCO”) published its interim report on its sector inquiry into the charging infrastructure for electric vehicles.[2]

In September 2021, the UK Competition and Markets Authority (CMA) announced the official launch of the Office for the Internal Market (OIM), a new unit within the CMA intended to support the effective operation of the UK internal market through monitoring, publishing reports and advice, and making recommendations to the Government. This article examines (i) what the OIM does and why it was introduced; (ii) how the OIM proposes to carry out its functions; (iii) the OIM’s information gathering powers; and (iv) broader implications for UK competition policy.

On August 31, 2021,[1] the Council of State reaffirmed the position it recently took in two previous judgments regarding the calculation of fines for bid rigging cases.[2]

On July 30, 2021, the French Competition Authority (“FCA”) published its revised Fining Guidelines, which repealed and replaced the 2011 guidelines.[1] In June, the FCA had opened a public consultation on a draft, which provided for different changes of the method of calculation of fines. While the Guidelines as published have retained those changes, they also include several more minor ones resulting from the public consultation.

On July 29, 2021, the German Federal Cartel Office (“FCO”) published the results of its sector inquiry into mobile apps,[1] finding severe deficiencies regarding the information provided to app users and apps’ compliance with data protection law.  The FCO recommends app publishers and app store operators should increase transparency and requests increased private enforcement and more enforcement by data protection authorities.