Policy & Procedure

On December 21, 2023, the Grand Chamber of the CJEU delivered a judgment on the interplay between public procurement rules and competition law.[1]  The judgment replies to questions raised on a preliminary reference by the Portuguese Supreme Administrative Court on the interpretation of Article 57(4) of the Public Procurement Directive (“PPD”),[2] which states that tendering authorities may exclude from participation in a procurement procedure any economic operator involved in anticompetitive behaviour.  The judgment provides the following clarifications:

On December 21, 2023, the Paris Court of Appeal (the “Court”) upheld the French Competition Authority’s (“FCA”) decision to jointly and severally fine Mayotte Channel Gateway (“MCG”) as the author of the infringement, and Société Nel Import Export (“SNIE”) as its parent company, for obstructing the investigation by willfully and repeatedly failing to respond to an information request (the “Decision”).[1]

On December 20, 2023, the French Cour de cassation ruled that the French Competition Authority’s (“FCA”) Rapporteur Général is required to duly justify its decision to disclose business secrets.[1] Two days later, the Conseil d’État (the French administrative supreme court) requested a preliminary ruling from the Tribunal des Conflits in the same case to clarify whether an action seeking to enforce the right to the protection of business secrets should be heard by a civil or administrative court.[2]

On December 15, 2023, the French Competition Authority (“FCA”) published its Revised Leniency Guidelines, which repealed and replaced the 2015 guidelines.[1]  The Revised Leniency Guidelines were adopted as part of the implementation of the “DDADUE” law,[2] the ECN+ directive,[3] and the “Damages” directive.[4]  They aim to provide greater legal certainty for leniency applicants and modernize the leniency application procedure.

On 24 November 2023, the Financial Conduct Authority (FCA) published a Call for Input on the potential competition impacts arising from the data asymmetry between Big Tech firms and firms in financial services. The Call for Input follows the FCA’s October 2022 Discussion Paper regarding the potential competition impacts of Big Tech entry and expansion in retail financial services, and its July 2023 Feedback Statement summarising the responses to the Discussion Paper. [1]

On 16 November 2023, the Competition and Markets Authority (CMA) issued a warning to Wowcher, calling on the e-commerce site to change its online sales practices and in particular its “urgency claims” that risk misleading consumers.  Wowcher has an opportunity to respond and offer undertakings to change its practices and avoid potential court action.

On 20 November 2023, the Digital Markets, Competition, and Consumers Bill (DMCC) cleared the report stage and an expedited third reading in the House of Commons, at which a series of significant amendments were passed.