On March 22, 2023, the Federal Ministry for Economic Affairs and Climate Action (“FMEACA”) hosted an event in which they presented a report commissioned by the FMEACA concerning sustainability goals in competition law in Germany and the EU (“the Report”).[1] 

On March 23, 2023, the French Cour de cassation ruled that requests to restrict the French Competition Authority’s (“FCA”) communication actions relating to a fining decision qualify as applications for interim relief under Article L.464-8 of the French Commercial Code and therefore can validly be brought before the Paris Court of Appeals.[1] 

In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor.[1]  In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense.[2]  It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel,[3] Ryanair/Aer Lingus,[4] Ineos/Solvay.[5]  The final report is scheduled for publication later this year.[6]

On February 1, 2023, the Court of Justice held a hearing in Altice’s appeal against the General Court’s decision in 2021 to largely uphold the Commission’s record fine for gun-jumping in the Altice/PT Portugal transaction.[1]  Altice’s defense at the hearing hinged on three claims: (i) the Commission wrongly fined Altice twice for failure to notify and for breaching the standstill obligation; (ii) Altice did not acquire veto rights, and therefore control, by signing the Share Purchase Agreement (“SPA”); and (iii) the Commission breached the principle of proportionality by failing to explain its reasoning in setting the fines.

Cleary Gottlieb senior attorney Philipp Kirst contributed the chapter “The application ratione temporis of the Directive’s provisions and conflicting limitation periods under national laws” to the Research Handbook on Private Enforcement of Competition Law in the EU, published by Edward Elgar Publishing.

On March 1, 2023, the French Cour de Cassation (i.e., the French Civil Supreme Court) upheld the Paris Court of Appeals’ (“Court of Appeals”) judgment awarding Digicel €180 million in damages for harm suffered as a result of anticompetitive practices implemented by Orange from 2000 to 2006 in the mobile telephony sector in the French West Indies and Guyana.  However, the Cour de Cassation quashed the Court of Appeals’ finding that interest on the damage award should run from April 1, 2003, given that the harm inflicted to Digicel had not fully materialized at that date.