On February 14, 2019, the European Court of Human Rights (“ECtHR”) found in SA-Capital Oy v. Finland, that the Finnish Supreme Administrative Court had not violated SA-Capital’s right to a fair trial under Article 6 of the European Convention on Human Rights by partially relying on hearsay evidence in finding the existence and the scope of a cartel.[1] In particular, given the evidentiary complexity of cartel infringements, the ECtHR concluded that national competition authorities may use hearsay to the extent their findings do not solely depend on it.[2]

On February 14, 2019, the Commission published a decision, adopted on December 7, 2018,[1] accepting commitments offered by TenneT, an electricity transmission system operator (“TSO”), to remove restrictions on, and in the long term also to increase, the maximum capacity of the electricity interconnector between Germany and West Denmark (“the DE-DK1 interconnector”).

On 12 February 2019, the UK Competition and Markets Authority (CMA) imposed a fine of £200,000 on Electro Rent for gun-jumping.[1] This is the third occasion on which the CMA has penalised a company for breaching “standstill” or “hold-separate” obligations under the UK merger rules, and comes only one day after the Competition Appeal Tribunal (CAT) upheld the CMA’s first gun-jumping fine (imposed on Electro Rent in June 2018 for a separate infringement).[2] The CMA has shown increased readiness to penalise companies for breaching procedural rules, in particular in relation to merger proceedings, consistent with recent action by the European Commission (EC) and national agencies in the EU. The CAT’s judgment strongly endorses the CMA’s approach: “[i]t is a matter of public importance that the merger control process, and the duties it creates, are strictly and conscientiously, observed.”[3]

On February 6, 2019, the German Federal Cartel Office (“FCO”) prohibited Facebook’s practice of collecting and processing user data from Facebook’s own services as well as from third-party services without users’ freely given consent.[1] After an investigation of nearly three-years, the FCO found that this practice amounted to an exploitative abuse of a dominant position. For the first time, the FCO considered compliance with data protection rules in its abuse of dominance analysis.

On February 6, 2019—the same day the Siemens/Alstom decision was adopted—and again following a Phase II investigation, the Commission prohibited German rolled copper products manufacturer Wieland’s proposed acquisition of Aurubis’s rival business and of its 50% stake in the parties’ pre-rolled strip manufacturing joint-venture Schwermetall.[1]

On February 6, 2019, the Commission[1] prohibited the then-proposed combination of Siemens AG’s (“Siemens”) mobility business and Alstom S.A. (“Alstom”) which put an end to the parties’ ambition of creating a European Champion in the rail industry.[2] The Financial Times called this Phase 2 investigation “one of the most important test cases for the commission since it assumed powers to vet EU mergers in 1989.”[3]

On January 30, 2019, the ICA found that four companies rigged a public tender for regional waste collection and disposal.[1] According to the ICA, the collusion was facilitated by the intervention of a third-party consulting firm, which encouraged and coordinated the parties’ collusive behavior. In line with EU precedent, the ICA imposed a fine also on the facilitator.[2]