On May 18, 2020, the French Cour de Cassation upheld the Paris Court of Appeals’ judgment which had confirmed the French Competition Authority’s (“FCA”) fining decision against Groupement des Installateurs Français (“GIF”). The Cour de Cassation held that the FCA’s Collège could re-open the investigation to allow the FCA’s investigation services to add evidence on which they relied for establishing the statement of objections (“SO”) but that they “inadvertently omitted” to include in the case file. The defendant’s response to the flawed SO can remain in the case file despite the fact that the defendant did not have access to that evidence when preparing its response, as long as the defendant is given the chance to reply to a supplementary SO after the investigation is re-opened.
COVID-19 Update: Time-limits for Merger Control and Antitrust Proceedings Are Gradually Resuming
By Order No. 2020-560 of May 13, 2020, the Government decided not to further postpone the time limits that had been suspended or interrupted since March 12, 2020, despite the extension of the state of health emergency. Consistently, in a press release of May 18, 2020, the French Competition Authority (“FCA”) announced that it would progressively re-instate the statutory time limits that had been interrupted or suspended in light of the state of health emergency. All of these time limits will resume on June 24, 2020 at the latest.[1]
Advocate General Pitruzzella’s Opinion in Groupe Canal+: A Trailer for the First Annulment of Commitments by the Court of Justice?
On May 7, 2020, Advocate General (“AG”) Pitruzzella delivered his opinion on Canal+’s appeal against a 2016 Commission commitment decision in the context of its investigation into the cross-border provision of pay-TV services.[1] AG Pitruzzella concluded that by accepting Paramount’s commitments, the Commission breached the principle of proportionality because they ignored contractual rights of third parties. Should the Court of Justice (the “CJEU”) follow this opinion, the case may lead to the first annulment by the EU’s highest court of a Commission commitment decision since the adoption of Regulation No. 1/2003.
French Regulators Announce That They Will Increasingly Take Into Account Climate Issues in Exercising Their Missions
In early May, eight administrative bodies in charge of regulating different sectors, including the French Competition Authority (“FCA”) for competition, published a joint working paper highlighting the need to take into account the urgency of climate change in exercising their respective missions.
DG COMP Responds To The COVID-19 Outbreak (May 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions could raise potential issues under competition law.
The Council of State Annuls an ICA Decision That Fined the Italian National Lawyers’ Council for Failure to Comply With a Previous Infringement Decision
On April 30, 2020,[1] the Council of State confirmed the annulment of a decision issued by the ICA in 2016,[2] which had fined the Italian National Lawyers’ Council (Consiglio Nazionale Forense, the “CNF”) for failure to comply with a 2014 infringement decision.[3]
The Judgment sheds light on the procedural rules the ICA should follow in proceedings regarding alleged failure to comply with previous infringement decisions.
The Commission Doubles Down on Digital Markets
On April 24, 2020, the Commission announced that it is seeking to design and implement specific ex ante[1] and remedy tools[2] for digital markets. This follows earlier efforts related to the creation of a single data market and the proposed European approach towards artificial intelligence unveiled in February 2020.[3]
ICA Notice on Cooperation Agreements Between Businesses in the COVID-19 Emergency
On April 22, 2020, the Italian Competition Authority (the “ICA”) issued a notice (the “Notice”) providing guidelines on the assessment of cooperation agreements in the context of the Covid-19 emergency.[1]
The Commission Tests 1997 Market Definition Notice’s “Fit-for-Purpose”
On April 3, 2020, the Commission launched a public consultation to review the adequacy of the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of relevant product and geographic market.[1] This kicks off a six-week process to solicit opinions from anyone interested.
The European Commission Authorizes the French Government’s Measures To Face COVID-19
Since the beginning of the COVID-19 outbreak, the French Government has notified a series of measures to the European Commission on the basis of the Temporary Framework adopted by the European Commission in order to enable Member States to support their economy in this specific context.[1] Such measures were authorized by the Commission under Article 107(3)(b) TFEU, as listed below.[2] The Commission also authorized a tax deferral scheme directed at French airlines under Article 107(2)(b) TFEU “to make good the damage caused by natural disasters or exceptional circumstances”.