The CMA published a “refresh” of its Digital Markets Strategy (DMS II) on 9 February 2021. The first iteration (DMS I) was published in June 2019 but the CMA explains that “much has changed” in the interim, not least “significant developments in the political and regulatory landscape for digital markets.”
The Court Of Justice Confirms The Commission’s Wide Discretion In Defining The Scope Of A Request For Information
On January 28, 2021, the Court of Justice upheld the General Court’s ruling that the Commission’s request for information (“RFI”) issued during its predatory pricing investigation of Qualcomm was necessary and proportionate.[1] The judgment further strengthens antitrust authorities’ broad discretion in deciding on the scope of RFIs.
A New Theory of Harm and an Unprecedented Enforcement Action: The Commission Flexes Its Muscles in Novelis/Aleris
On January 27, 2021, the Commission published its decision to conditionally approve Novelis’ acquisition of Aleris, two suppliers of flat-rolled aluminum sheets.[1]
The Commission pushed the boundaries of its own powers in merger control proceedings, both in terms of substance and procedure. With respect to substance, the Commission introduced in its decision a new theory of harm for the competitive analysis of transactions, particularly with respect to markets affected by significant capacity constraints. From a procedural standpoint, the Commission adopted far-reaching measures to enforce the commitments that had been offered– and eventually infringed–by the parties to the transaction.
The French Competition Authority Publishes a Study on Professional Associations
In connection with the forthcoming transposition of Directive No. 2019/1 (the “ECN+ Directive”), which exposes professional associations to higher fines for anti-competitive practices, the French Competition Authority (“FCA”) has published a study on how competition law applies to professional associations and made a number of practical recommendations.[1]
Cooperation To Achieve Sustainability Goals – CMA Publishes Guidance
On 27 January, the CMA published guidance for businesses on the application of UK competition law to co-operative agreements aimed at achieving environmental or sustainability objectives (the Guidance). The role of competition law in supporting environmental initiatives has seen greater focus as the UK government pursues its 2050 net zero target and the European Union seeks to become the first climate-neutral continent by 2050 (discussed here). The Guidance explains the application of existing block exemptions and guidance for firms assessing whether agreements with sustainability objectives risk infringing competition law, and is part of a wider programme of activities that the CMA is carrying out to support sustainability objectives.
One-size-Fits-all: The Ethylene Decision Confirms the Commission’s Practice to Apply a 10% Fine Uplift to Purchaser Cartels
On January 22, 2021, the Commission published the non-confidential version of its July 2020 settlement decision, fining three purchasers of ethylene[1] a total of €260 million for infringing Article 101 TFEU.[2] The case is only the second purchaser cartel sanctioned by the Commission under the 2006 Fining Guidelines, after its Car battery recycling decision.[3]
The French Cour de Cassation Holds That Legal Privilege Applies to All Attorney-client Communications Relating to the Exercise of the Rights of Defence—Even Those Unrelated to the Antitrust Case in Relation to Which the Dawn Raids Are Carried Out
On January 20, 2021, the Criminal Chamber of the Cour de cassation ruled that none of the attorney-client communications relating to the exercise of the client’s rights of defence could be seized during dawn raids, even those that were not related to the antitrust case in relation to which the dawn raids were carried out.
The Commission’s Initiative on Shielding Collective Bargaining From Antitrust Scrutiny
On January 6, 2021, the Commission published an inception impact assessment[1] on its latest policy initiative: allowing for more collective bargaining under EU antitrust rules to improve working conditions for self-employed individuals, in particular in relation to digital platform workers (e.g., food delivery services).
The French Competition Authority Reports on Its 2020 Activity and Announces Its Enforcement Priorities for 2021
On December 23, 2020, the French Competition Authority (“FCA”) presented a summary report of its 2020 activity and set out its priorities for 2021.[1]
Digital Markets: The Commission Publishes Draft Online Platforms Regulations
On December 15, 2020, the Commission published its proposal for the Digital Markets Act (“DMA”),[1] which would impose a list of ex ante obligations on designated large online platforms that meet certain thresholds. The proposed DMA aims at preventing practices by large online platforms that, according to the Commission, either fall outside or cannot be effectively addressed by the existing EU competition rules. The DMA would represent a far-reaching expansion of the Commission’s regulatory powers in digital markets, and would significantly increase the regulatory burden on the designated companies.