On June 3, 2021, Advocate General Pitruzzella delivered an Opinion in the Optical Disk Drives case, finding that the Commission breached the appellants’ rights of defense, but that the fines imposed should nevertheless stand.[1]
The Commission Re-adopts and Amends the YIRD Cartels Decision Against ICAP, Halving the Total Fine
On July 10, 2019, the Court of Justice upheld the General Court’s partial annulment of the Commission’s 2015 decision to fine ICAP c. €15 million for facilitating a cartel in the Yen Interest Rate Derivatives (“YIRD”) market between 2007 and 2010.[1]
The Council of State Confirms the ICA’s Assessment of the “Value of Sales” and the “Entry Fee” in Calculating the Fines for a Bid Rigging Case
Update on the Commission’s Anti-cartels Enforcement
On May 20, 2021, the Commission issued a decision fining several banks for participation in an alleged cartel in European government bonds (“EGB”) trading.[1] The Commission decision found that seven investment banks (Bank of America, Natixis, Nomura, UBS, UniCredit, RBS, and WestLB (now called Portigon)) participated in an alleged collusive scheme aimed at distorting competition in purchasing and trading EGBs.[2] EGBs are financial instruments issued on the primary market for the purposes of raising debt capital by the governments of the Eurozone Member States. Once bought by “primary dealers” in primary market auctions, EGBs are traded on the secondary market among investors and financial institutions.
The Paris Court of Appeals Rejects Roche’s Challenge Against the French Competition Authority Communication Campaign Following Its Decision To Impose a Fine on Roche, Novartis and Genentech for Abuse of Collective Dominance in the Market of AMDTreatment
In an order dated May 12, 2021, the Paris Court of Appeals ruled that it did not have jurisdiction to rule on Roche’s request for injunctive relief against the French Competition Authority (“FCA”), who had shared videos related to the case on social media and sent a letter to a pharmaceutical trade association in the aftermath of the publication of its prohibition decision.[1].
The Commission Proposes a Draft Regulation to Tackle Potential Distortions Caused by Foreign Subsidies
Background
On May 5, 2021, the Commission proposed a draft regulation to tackle potential distortions in the internal market caused by foreign subsidies (“Draft Regulation”).[1]
Joint Statement by the CMA, ACCC and Bundeskartellamt on the Need for Rigorous Merger Enforcement
In recent years, the CMA has been strengthening its approach to merger control as it prepares for its new status as a global enforcer with expanded jurisdiction following the UK’s exit from the EU. Since 1 January 2021, the CMA has been able to investigate the UK aspects of mergers that also qualify for review by the EU Commission (EC). Many transactions, including major global deals, are therefore now subject to parallel review by the EC and CMA.
The French Competition Authority Releases Its Opinion on New Payment Technologies
On April 29, 2021, the French Competition Authority (“FCA”) issued its opinion on the competitive situation in the payment sector (the “Opinion”).[1] Although the Opinion concludes that recent developments—including the introduction of new technologies in payment activities and the proliferation of FinTech companies—are “overall procompetitive”,[2] it raises a number of areas of potential concern on which the FCA pledges to keep a close eye. The Opinion particularly stresses the risks stemming from the expansion of BigTech in the sector.
First Article 22 EUMR ‘Below Threshold’ Upward Referral After Commission’s Recent Policy Change
On April 19, 2021, the Commission accepted a referral request by the French competition authority of genomic sequencing company Illumina’s planned acquisition of biotech company Grail under Article 22 EUMR.[1] This marks the first effective upward referral of a ‘below threshold’ transaction, i.e., a transaction that neither meets national nor EU merger control thresholds.[2]
The Conseil d’Etat Holds That It Is Not Competent To Hear an Objection Against an FCA’s Referral of a Merger to the Commission
On April 1, 2021 the Conseil d’Etat ruled that it lacks jurisdiction to review a French Competition Authority (“FCA”) decision referring a contemplated merger to the European Commission (“Commission”) under Article 22 of the EU Merger Regulation (“EUMR”).[1]