On December 8, 2020, the FCJ overturned a decision of the DCA concerning an increase in cancellation fees for track access charges imposed by Deutsche Bahn AG (“DB”) between 2008 and 2011. The plaintiff demanded the repayment of a partial amount of the cancellation fees paid following a price increase of 150%. The FCJ referred the case back to the DCA.[1]

On 15 October 2020, the Competition and Markets Authority (CMA) revoked a £300,000 penalty it had imposed on JD Sports Fashion plc for breach of an interim enforcement order (IEO) issued in connection with JD Sports’ completed acquisition of Footasylum plc. The penalty was withdrawn “[i]n light of issues raised on appeal.” This is the first time that a CMA procedural fine has been revoked or overturned on appeal. On 19 and 20 October 2020, the Competition Appeal Tribunal (CAT) heard Facebook’s appeal against the CMA’s refusal to grant a derogation from an IEO issued in connection with Facebook’s completed acquisition of GIPHY, Inc. This article considers potential implications of these cases for future UK mergers.

On December 8, 2020, the FCA dismissed a complaint by French travel cooperative CEDIV on behalf of 55 member travel agencies against several airlines which denied travellers refunds for their flights, cancelled due to the COVID-19 pandemic (the “Decision”).[1]

On December 3, 2020,[1] the Paris Court of Appeals ruled in the Brenntag case that a company challenging its participation in a cartel cannot be held liable simply because other companies did not contest the alleged objections from the FCA. This judgment, issued in the context of a cartel case in the chemical distribution sector, constitutes a turnaround in the case law, although the Court of Appeals, ruling on the merits of the case, ultimately confirmed the fines imposed by the FCA.

On December 2, 2020, the Regional Court of Bonn dismissed BayWa AG’s (“BayWa”) action for state liability against the Republic of Germany and the FCO for a breach of the constitutional prohibition of discrimination in the context of the FCO’s leniency program.[1]

Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.

Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]

On November 26, 2020, the Commission fined Teva and Cephalon a total of €60.5 million for entering into a pay-for-delay agreement in relation to a sleep disorder drug. This arrangement is alleged to have helped maintain high prices for several years, to the detriment of patients and healthcare systems.[1]

On November 25, 2020, after an in-depth investigation, the FCO approved the acquisition by Mann Mobilia Beteiligungs GmbH (part of the XXXLutz Group) of 50% of the shares in Möbel Management Holding GmbH & Co. KG and Roller GmbH & Co. KG (part of the Tessner Group), subject to the divestiture of 23 furniture outlets.[1] The FCO’s clearance only relates to the sales side of the transaction, i.e., the relationship between furniture retailers and consumers, whereas on November 30, 2020, the European Commission unconditionally cleared the transaction with respect to the procurement side, i.e., the relationship between furniture retailers and manufacturers.[2]