On March 31, 2021, the Commission withdrew its decision which made binding—under Article 9 of Regulation No 1/2003—commitments offered by NBCUniversal, Sony, TWDC, Twentieth Century Fox, Warner Bros and Sky in the cross-border access to pay-TV antitrust proceedings.[1] The withdrawal follows the annulment by the Court of Justice of the Commission’s commitments decision against Paramount and its parent company Viacom[2] (the “Paramount Commitments Decision”), who had offered essentially identical commitments to those offered by the parties in the present case.
Green Light For Emergency Platform for Vaccination Equipment
On March 29, 2021, the FCO cleared the way for full-line pharmaceutical wholesalers’ participation in the VCI Emergency Platform for Vaccination Equipment (“Emergency Platform”).[1]
The Conseil Constitutionnel Holds That Article L. 464-2(5), 2° of the French Commercial Code Is Contrary to the Constitution
On March 26, 2021, the French Conseil constitutionnel ruled that Article L. 464-2(5), 2° of the French Commercial Code, under which the French Competition Authority (“FCA”) may impose a fine of up to 1% of an undertaking’s turnover for obstructing an investigation, was contrary to the French Constitution.[1]
Transforming European Merger Control: The Commission Specifies When It Will Seek To Review Mergers That Are Not Subject to Any Filing Requirements
Pometon v. Commission: The Court of Justice Sheds Light on the Principle of Equal Treatment and the Presumption of Innocence in Hybrid Cartels Settlements
On March 18, 2021, the Court of Justice ruled on Pometon SpA (“Pometon”)’s appeal against the General Court’s judgment in the steel abrasives[1] hybrid cartel settlement case. The Court of Justice ruled that the General Court had breached the principle of equal treatment when recalculating the fine imposed on Pometon by the Commission in 2016, the only non-settling party in this case. The Court of Justice therefore further reduced Pometon’s fine to €2.6 million, imposing an approximate 60% discount on the original fine calculated by the Commission.[2]
CMA publishes new Merger Assessment Guidelines
On 18 March, the CMA published new Merger Assessment Guidelines (the New Guidelines). Under the New Guidelines, the CMA will adopt a more flexible approach to the substantive assessment of mergers, particularly in digital markets. The New Guidelines also suggest the CMA will look to intervene in mergers where market shares are low or where the evidence of anticompetitive effects is slim.
The French Conseil d’Etat Recognizes Right of Employee Representatives to Appeal Against a French Competition Authority’s Merger Clearance Decision
On March 9, 2021, the French Conseil d’Etat ruled that the employee representative body of the target company could appeal the FCA’s decision to clear the transaction. However, the Conseil d’Etat dismissed the appeal on the merits.[1]
The Court of Justice Confirms Parallel Antitrust Investigations at European and National Level Are Possible if Different in Scope
On February 25, 2021, the Court of Justice held that the Commission and the Slovak competition authority did not infringe EU law when conducting two parallel investigations against Slovak Telekom.[1] Because the two investigations pertained to different product markets, regulators at the European and national level were entitled to proceed in parallel and eventually impose two distinct fines on Slovak Telekom.
The French Cour de Cassation Confirms the Validity of FCA Dawn Raids Authorized on the Basis of Another Competition Authority’s Request for Investigative Measures
In a ruling dated February 17, 2021, the Cour de cassation dismissed an appeal formed against an order dated June 2019, in which the Paris Court of Appeals confirmed that the FCA could validly initiate an investigation and carry out dawn raids on the basis of a request for inspection issued by the competition authority of another EU Member State.
Dortmund Regional Court Aligns Principles for Jurisdiction With EU Law
On February 10, 2021, the Dortmund Regional Court set out principles for determining jurisdiction, specifically in competition damages litigation.[1]