On October 5, 2020, the General Court partially annulled three European Commission decisions ordering French supermarket groups Casino and Intermarché to submit to unannounced inspections.1[1]The General Court found that the Commission did not have sufficiently strong evidence to suspect one of the alleged infringements and had therefore breached the dawn raided companies’ right to the inviolability of the home.
The French Tribunal Des Conflits Confirms the Jurisdiction of the Paris Court of Appeals To Rule on Confidentiality Waivers in Public Versions of French Competition Authority Decisions
On October 5, 2020, the French Tribunal des Conflits confirmed that the Paris Court of Appeals had jurisdiction to rule on the appeal lodged by Google against an FCA interim measures decision, in which Google alleged that the FCA had breached its right to the protection of business secrets by publishing information that had previously been granted confidential treatment by the investigation services.[1]
HeidelbergCement & Schwenk Zement v. Commission: The General Court Provides Jurisdictional Clarity Where a Joint Venture Acts as the Acquirer
On October 5, 2020, the General Court dismissed an action for annulment by HeidelbergCement and Schwenk Zement (the “parent companies”) against the Commission’s April 2017 decision,[1] which prohibited their acquisition of Cemex’s Croatian and Hungarian subsidiaries through Duna-Dráva Cement (“DDC”), a full-function JV (“JV”) equally owned and controlled by the parent companies. [2]
General Court Clarifies the Role of Privacy Protections in Commission Investigations
October 2020 saw important developments with respect to the procedural framework surrounding the Commission’s evidence-gathering powers. A General Court judgment on the appropriateness of dawn raids at three French supermarket chains and the Court’s interim order regarding the Commission’s ongoing probe into Facebook’s data practices both have practical implications for companies under investigation.
The Council of State Declares Inadmissible an Application for Revocation of a Previous Judgment on Grounds of Error of Fact
On September 28, 2020, the Council of State[1] dismissed the appeal brought by Buzzi Unicem S.p.A. (“Buzzi”) for the revocation of a judgment previously delivered by the same court, which upheld the lower court’s ruling as well as an ICA decision fining an alleged cartel in the cement sector.[2] Buzzi challenged the judgment before the Council of State on grounds of error of fact.[3]
The Court of Justice Rejects Prysmian’s Appeal in Line With Its Prior Judgments on the Power Cables Cartels
On September 24, 2020, the Court of Justice dismissed an appeal brought by the Italian cable producer Prysmian against a €104.6 million fine imposed by the Commission for its participation in the Power Cables cartel.[1]
Court Denies Spanish NCA Status as “Court or Tribunal” for Making Preliminary References (Anesco)
On September 16, 2020, the Court of Justice ruled on the interpretation of the concept of “court or tribunal” within the meaning of Article 267 TFEU.[1] The Court of Justice held the reference for a preliminary ruling inadmissible, for lack of the referring Spanish competition authority (“CNMC”) constituting a “court or tribunal” for the purpose of Article 267 TFEU.
The French Competition Authority Reserves the Right To Refer to the European Commission Transactions That Do Not Reach the National Notification Threshold
On September 15, 2020, Margaret Vestager announced that the European Commission would, as of mid-2021, accept referrals from national competition authorities for transactions that do not reach any national notification thresholds under Article 22 of Council Regulation (EC) No 139/2004 (“Article 22”).[1] This provision enables a national competition authority to request that the European Commission examine a transaction that does not meet the European Union notification thresholds, but would affect trade between Member States and threaten to significantly affect competition.
A Step Forward in the Journey ‘Towards More Effective EU Merger Control’?
On September 11, 2020, Commissioner Vestager during a speech at a conference[1] for the 30th anniversary of the EU Merger Regulation (“EUMR”),[2] outlined her vision on merger control policy for the upcoming years.[3] In anticipation of the Commission’s long awaited report on its 2016 consultation on the evaluation of procedural and jurisdictional aspects of EU merger control, Commissioner Vestager shed some light on the Commission’s position on (i) notification thresholds; (ii) the simplification of merger filing and review processes; and (iii) its reflections on the substance of merger review in certain sectors.
Block Exemption Troubleshooting: How E-commerce Is Reshaping EU Antitrust Policy on Distribution Agreements
For more than a decade, the Vertical Block Exemption Regulation (“VBER”)[1] and the accompanying Guidelines on Vertical Restraints (“Guidelines”)[2] have been the essential point of reference for the assessment of resale and distribution arrangements[3] under EU antitrust rules. With the VBER set to expire in 2022, the Commission in 2018 launched a review process to determine whether it should let the regulation lapse, prolong, or revise it.[4] After almost two years of evaluation, stakeholder feedback, public consultations and dialogues with national authorities, on September 9, 2020, the Commission published its report summarizing the outcomes of the evaluation.[5] The report provides a detailed overview of the VBER’s shortcomings and points of strength, and paves the way for the possible introduction of a revised regulation within the next two years.