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:
Vertical Agreements
FCO’s Annual Report 2021/2022: The Digital Economy And Antitrust Enforcement In Times of Crisis
On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1] Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First, the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine. Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis. Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights.
2023 Update: U.S. Antitrust Sets Sail into Uncharted Seas
Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. …
The French Cour de cassation confirms that French rules on practices restricting competition apply to subcontracting agreements
On January 11, 2023, the French Cour de cassation partly quashed a decision of the Paris Court of Appeals. The French Cour de cassation considered that the Paris Court of Appeals had rightly held that the provisions of the French Commercial Code on practices restricting competition apply in the context of subcontracting relations, but erred in its application of these provisions.[1]
International for abusive restrictions on online sales
On October 6, 2022, the French Competition Authority (the “FCA”) imposed a €81 million fine on Essilor International SAS (“Essilor”) for having engaged in discriminatory trading practices aimed at hindering the development of e-commerce for optical lenses in France between April 2009 and December 2020.[1] Essilor’s parent company, EssilorLuxottica, was fined €15.4 million jointly and severally with its subsidiary and announced its intention to appeal the decision.[2]
The TAR Lazio Overturns ICA Decision to Fine Amazon and Apple for Allegedly Restructuring Competition in the Sales of Apple and Beats Products on Amazon Marketplace
On October 3, 2022, the Regional Administrative Court for Latium (the “TAR Lazio”) annulled the decision of the Italian Competition Authority (the “ICA”) of November 16, 2021 (the “ICA Decision”),[1] by which a fine of €134.5 million was imposed on Apple Inc. and certain of its subsidiaries (“Apple”) and a fine of €68.7 million on Amazon.com Inc. and certain of its subsidiaries (“Amazon”; together with Apple, the “Parties”).[2] The ICA Decision had found that the Parties infringed Article 101(1) (b) and (d) TFEU by restricting competition by certain resellers of Apple products, including those of the Apple-owned brand Beats, which operated on the online marketplace of Amazon (the “Amazon Marketplace”). The ICA found Amazon Marketplace to be a leading online marketplace in Italy, for consumer electronics products.[3]
Commission Publishes The Infringement Decision In Video Games For Geo-Blocking
Commission Publishes The Infringement Decision In Video Games For Geo-Blocking
On August 23, 2022, the Commission published its full decision in Video Games, fining Valve (the owner of the online PC gaming platform Steam) and five PC video game publishers (Bandai Namco, Capcom, Focus Home, Koch Media, and ZeniMax) a total of €7.8 million for restricting cross-border sales of PC video games.[1] The Commission found that the agreement between Valve and the video game publishers, which prevented gamers from activating certain PC videogames purchased in eight Member States where prices are generally lower than in other Member States (so-called “geo-blocking”), breached Article 101 TFEU.
New UK Framework for Vertical Agreements Finalised
Commission Proposes to Extend Rules for Motors Sector Vertical Agreements
On July 6, 2022, the European Commission launched a public consultation on its proposal to extend the Motor Vehicle Block Exemption Regulation (“MVBER”), which has been in force since 2010 and is set to expire in May 2023.
CMA Seeks Comments on Draft Guidance for Vertical Agreements Block Exemption Order
The UK Competition and Markets Authority (the “CMA”) is consulting on its draft guidance (“Draft Guidance”) for its proposed Vertical Agreements Block Exemption Order (“VABEO”). It invites comments by May 5, 2022.