On October 18, 2023, the French Cour de cassation upheld the Paris Court of Appeals’ ruling finding that the French Competition Authority (“FCA”) had rightly calculated the amount of the fine imposed on L’Oréal in 2014 for its alleged involvement in a cartel in the personal care products industry.[1] The French Cour de cassation confirmed that the sales of a subsidiary that did not itself participate in the infringement can be included in the calculation of the fine if these sales have been affected by the infringement sanctioned.

On October 18, 2023, the General Court delivered its judgment in Clariant v. Commission.[1]  It upheld the Commission’s settlement decision in the Ethylene case,[2] following an appeal by Clariant, who argued that the Commission erred in: (i) applying a 50% recidivism multiplier to Clariant in circumstances where the previous infringement in which it had participated was not a purchasing cartel, but rather a sales cartel; and (ii) applying a 10% fine increase (to all participants) on account of the infringement being a purchasing cartel, to ensure adequate deterrence.  The General Court also rejected a counterclaim lodged by the Commission, in which the Commission sought to increase the fine imposed on Clariant by removing its 10% settlement discount, on the basis that Clariant had accepted to be fined in the context of settlement proceedings.

On October 18, 2023, the General Court dismissed[1] the appeals of Teva Pharmaceutical Industries Ltd (“Teva”) and Cephalon Inc. (“Cephalon”) against the Commission’s decision imposing a €60.5 million fine on both pharmaceutical companies for pay-for-delay agreements.[2]  The General Court confirmed the Commission’s conclusion that Teva and Cephalon’s patent settlement agreement was aimed at preventing Teva from entering the market with its generic modafinil drug, and therefore restricted competition by object and by effect.

On October 12, 2023, the notification obligations under the EU Foreign Subsidies Regulation (FSR) took effect.  Businesses must notify all M&A deals (if signed on or after July 12 and not yet implemented by October 12) and public procurement tenders (for offers submitted on or after October 12) meeting the relevant thresholds. 

On October 12, 2023, the French Competition Authority (the “FCA”) published its Opinion on meal vouchers in response to the Government’s referral under Article L. 462-1 of the French Commercial Code.[1]  The FCA considered that the pricing cap envisaged by the government does not constitute the most appropriate response to market failures, i.e., the existence of entry barriers for potential new market entrants and the monopoly held by the four incumbent issuers. Therefore, the FCA issued five recommendations to address such failures.

On October 5, 2023, Advocate General Rantos delivered his opinion on two questions referred to the Court of Justice by the Portuguese Competition, Regulation and Supervision Court (the “referring court”).[1]  The referring court seeks clarification on whether a ‘standalone’[2] exchange of information between competitors can be classified as a restriction by object under Article 101 TFEU, and whether that classification is permitted where it has not been possible to establish any uncertain or procompetitive effect on competition resulting from the exchange.  The case gives the Court of Justice an opportunity to clarify its recent evolution from a broad and formalistic interpretation of the concept of a restriction by object to a narrower, more  pragmatic interpretation of that concept.[3]

The French Ministry for Economy has blocked under FDI rules U.S.-based leading provider of fluid motion and control products and services Flowserve Corporation’s (“Flowserve”) USD 245 million proposed acquisition of Velan Inc (“Velan”), a Canada-based leading provider of industrial steel valves.[1]  

In a decision dated September 26, 2023, the French Competition Authority (“FCA”) imposed a €750,000 penalty on the French tobacco shops trade union, the Confédération Nationale des Buralistes de France (“CNBF”),for boycotting practices (the “Decision”).[1]  The FCA found that the trade union had sought to exclude rivals from the distribution of gambling games issued by La Française des Jeux (“FDJ”), the state-owned company responsible for operating the national lottery in France.