On July 27, 2023, the General Rapporteur of the French Competition Authority (“FCA”) confirmed the notification to Apple of a statement of objections (“SO”) concerning potential anticompetitive practices in the sector for the distribution of mobile applications, likely to have consequences on several related markets for advertising and consumer services.[1]
On June 29, 2023, the Court of Justice ruled on questions referred by the Lisbon Court of Appeals relating to alleged resale price maintenance (“RPM”) by Super Bock, a Portuguese beverage manufacturer.[1] The Court of Justice held, inter alia, that a vertical agreement fixing minimum prices is not necessarily a restriction of competition by object despite its characterization as a “hardcore restriction” under the Vertical Block Exemption Regulation (“VBER”)[2] and, in certain circumstances, the existence of an agreement may be inferred from “explicit or tacit acquiescence” by the distributors to an invitation to comply with minimum resale prices.[3]
On July 25, 2023, the French Competition Authority (“FCA”) approved, subject to remedies, the acquisition by the Areas Group (“Areas”) of sole control of its French competitor, Sirestco Group (“Sirestco”, together, “the Parties”) in the sector for the provision of highway catering services.[1]
The new draft guidelines depart from decades of practice by introducing novel presumptions that could make it harder for mergers to obtain regulatory clearance from the agencies.
On July 19, 2023, the FTC and DOJ published draft merger guidelines.[1] Historically, the purpose of these guidelines has been to provide the public, including companies whose transactions are potentially subject to agency review, with information about how the agencies analyze mergers to identify potential competitive harm. The guidelines have no force of law and are not binding on the courts, though courts have relied on them as persuasive authority to varying degrees. Past iterations of the guidelines have therefore provided a neutral explanation of the agencies’ approach, including descriptions of the economic tools that they and the courts can use to assess a merger’s likely competitive effects.
On 10 July 2023, the UK Competition Appeal Tribunal (CAT) dismissed an appeal by Canadian software company Dye & Durham’s (D&D) against a decision of the Competition and Markets Authority (CMA) to reject a proposed “dual-track” remedy. The case arose out of the CMA’s investigation of D&D’s completed acquisition of TM Group (TMG), which resulted in the CMA requiring D&D to divest TMG to a suitable purchaser.
On July 4, 2023, the Commission conditionally approved, in Phase I, Advent’s acquisition of market research provider GfK through its subsidiary NielsenIQ, after Advent pulled and refiled the merger notification.[1] The approval is subject to the divestment of GfK’s global consumer panel services (“CPS”) business, excluding Russia.[2]
In the latest episode of Cleary Gottlieb’s Antitrust Review podcast, host Nick Levy interviews Sir Jonathan Faull.
Their conversation covers
Making markets work for consumers is a core mission for UK agencies with competition and consumer protection responsibilities. This task assumes heightened importance in the context of current cost-of-living pressures. In this post, we discuss recent regulatory interventions that have focused on these issues.
On July 5, 2023, the German Parliament (Bundestag) passed the Competition Enforcement Act, amending the German Act Against Restraints of Competition (“ARC”) for the 11th time (“11th Amendment”). This comes only two and a half years after the last significant amendment in 2021, which granted the Federal Cartel Office (“FCO”) unprecedented investigative powers.[1] The 11th Amendment once again equips the FCO with additional enforcement powers.
On 11 July 2023, the UK Government published its second Annual Report on the National Security and Investment Act 2021 (the “Act”).
The Annual Report begins with an introduction by Oliver Dowden MP, the Deputy Prime Minister, who is the formal decision-maker under the Act in his role as the Secretary of State in the Cabinet Office. This introduction seeks to reassure investors that the Act is a “light-touch, proportionate regime that offers companies and investors the certainty they need to do business, while crucially protecting the UK’s national security in an increasingly volatile world.”