parliment flags

The French Competition Authority (“FCA”) ended the year with two punitive decisions: in both cases, the parties were severely sanctioned for obstructionist behavior. In the first decision dated 20 December 2017, the FCA imposed a 25 million euro fine on pharmaceutical company Janssen-Cilag and its parent company Johnson & Johnson, for having prevented and then restricted the development of generic versions of its Durogesic analgesic (a medicine aimed at alleviating the pain of individuals, in particular children, suffering from cancer). –Read More–

Introduction One of the key concerns of merging parties in any transaction is the steps they are allowed to take prior to the clearance of the merger.  A recent case before the Court of Justice of the European Union (Case C‑633/16 Ernst & Young P/S Konkurrencerådet) has recently had to address this particular issue. On 18 January 2018, Advocate General Wahl handed down an opinion which provided helpful guidance on what steps companies could take without rendering themselves liable for –Read More–

A recent public procurement decision of the European Free Trade Association (EFTA) Court highlights the possibility that aggrieved suppliers in public procurement cases in the UK run the risk of losing their future rights to damages in post-Brexit Britain unless they are specifically retained under the European Union (Withdrawal) Bill. One of the UK Government’s redlines in the Brexit negotiations was not being subject to the rulings of the Court of Justice of the European Union (CJEU). However the EU –Read More–

We reported in January 2017 on how a Portuguese Court has asked the Court of Justice of the European Union (“CJEU”) to provide guidance on when “discriminatory pricing applied to equivalent transactions” amounts to an abuse of a dominant positon under Article 102 (c) Treaty for the Functioning of the European Union (“TFEU”). Article 102(c) is often invoked when a dominant company supplies an input or raw material at different prices to competing customers. These competitors then process it into –Read More–

Introduction On 19 December 2017, the German Federal Cartel Office (FCO), issued a press release alleging that Facebook had abused its dominant position on the market for social networks in Germany. It specifically alleges that it forces users to sign up on a ‘take it or leave it’ basis to Facebook’s use and collection of their data. Facebook then uses this broad consent to monitor users’ non-Facebook data and merge those details with the users Facebook/Instagram/Whatsapp data for use in –Read More–

In what is being hailed as landmark case in distribution law, the Court of Justice of the European Union (the ‘CJEU’) on 6 December 2017 gave a judgment confirming that luxury goods suppliers can ban sales through online marketplaces. The case brings some clarity to the law and may be greeted with a sigh of relief by luxury goods manufacturers. However, in reality, does it really change market practice? The case concerned the German luxury cosmetics brand Coty, and a –Read More–

In a decision dated 18 October 2017, the French Competition Authority (FCA) imposed a record fine on the “resilient floor covering cartel” (one of the seven biggest fines in the history of the FCA), totalling 302 million EUR. The cartel, composed of the three main resilient floor covering groups, Tarkett, Forbo and Gerflor, together with the floor covering trade union (SFEC), were sanctioned for wide-ranging anti-competitive practices including price fixing, some of which lasted for more than 20 years. The –Read More–

The EU State aid rules are designed to stop Governments and local authorities giving companies a selective advantage, as doing so would create an unequal playing field. Say for example, a competitor in one country was given a 10% subsidy by the Government whilst the company’s closest competitor in another country was not given the same subsidy. It is likely the latter would not be able to compete effectively and could be driven out of business. These State aid rules –Read More–

On 27 October 2017, the UK’s Competition and Markets Authority (CMA) announced that it had launched investigations into several hotel booking websites on the grounds that they were potentially misleading consumers. Specifically, the CMA had concerns regarding: the manipulation of search results once a consumer had entered their hotel search criteria, particularly hotels who paid more commission to the website being ranked higher; creating false impressions as to room availability to rush consumer decision making; advertising misleading discounts that may –Read More–

Effective 8 June 2017, the 9th Amendment to the German Act against Restraints of Competition delegated more competences and ways to investigate to the Bundeskartellamt (German Federal Cartel Office — FCO) with respect to consumer protection, affecting especially retail businesses and digital markets. Since its founding in 1958, the FCO was called upon when talking mergers, cartels or competition regulation in general. Although its decisions could be challenged in court, it was the first arbiter to approve or prohibit mergers or certain –Read More–

The case itself is a judgement of 5 October 2017, following a request for a preliminary ruling from a regional court in Lithuania to the ECJ. The question submitted was essentially should a private company established by the Lithuanian state railway company, which independently carried out business in the private sector (in this case that business being providing rolling stock repair services to the state railway company) be considered a contracting authority? The ECJ was also asked this question on –Read More–

The CMA ,the UK’s main competition regulator, launched an investigation on 26th September 2017 into home insurance price comparison website, compare the market .com, over its use of most favoured nation clauses (“MFN”) and whether their use constituted an infringement of the Chapter I prohibition of the Competition Act 1998 and/or Article 101 of the TFEU. This investigation follows the publication of a final report in the CMA’s market study into digital comparison tools. Over the last year the CMA –Read More–

Following the French Economy Minister’s claim against Expedia in 2013, the Paris Court of Appeals, by decision dated 21 June 2017, heavily fined this Online Travel Agency (OTA), considering that certain provisions in the contracts between Expedia and its hotel partners created a “significant imbalance” between the parties under Article L. 442-6, I, 2° of the French Commercial Code. The dispute originates from 2011 when Expedia was subject to an inquiry by the DGCCRF (the French competition and consumer frauds authority). –Read More–

On 5 September 2017, the CMA released new guidance regarding its Mergers Intelligence Function and the informal guidance it can give parties who are considering whether to submit their merger for formal deliberation by the CMA. This relatively new process confers great advantages for companies with border the thresholds for notification or mergers which do trigger thresholds but the parties activities do not overlap. Parties can seek an informal opinion of no-interest using the merger intelligence unit of the CMA. –Read More–

On 29 August 2017, Law No. 124 of 2017 entered into force and amended Section 16 (1) of Law No. 287 of 1990 (the Italian competition law) that provides for prior notification system of all mergers and acquisitions in Italy which fall within certain thresholds. As of 29 August 2017, a concentration has to be notified to the Italian Competition Authority when it meets the new cumulative conditions below: (i) The aggregate turnover in Italy of all undertakings involved exceeds –Read More–

On 13 July 2017 the German Federal Cartel Office (FCO) announced the imposition of fines amounting up to €9.6M on three European heat shield manufacturers for the automotive industry. A fourth company involved in the agreement was not fined since its cooperation helped disclose the existence of the cartel and provide essential evidence in the investigation, which commenced in 2013. In 2011, the four automotive suppliers agreed on sharing highly sensitive economic information with respect to a common client, a –Read More–

On the 13th September 2017 Jean-Claude Juncker, the European Commission President, unveiled a framework for investment screening for certain foreign mergers in his “State of the Union” address to the European Parliament. At the same time the text of a proposed Council Regulation was published which set out inmore detail the proposed new EU system. These proposals are similar in nature to those proposed by the UK in the Queen’s speech a few months ago. This proposal had been widely –Read More–

The UK Prime Minister Theresa May is to set out her vision for Brexit during her highly-anticipated speech in Florence on September 22 Partner and Head of the EU & UK Competition Team at Bryan Cave, Robert Bell, commented in an article in Law360 on September 20 as to what businesses will be wanting to hear and seek clarity on from the Prime Minister’s address. He explains, “The business community’s primary concern with the whole Brexit process is the uncertainty –Read More–

On 12th September 2017  the UK competition authority, the Competition and Markets Authority (“CMA”) sent an open letter to businesses in the creative industries sector warning them about price fixing and information sharing, emphasising that this type of illegal behaviour will not be tolerated. The CMA’s experience derived from a recent cartel case and research into the creative sector. This showed that while the creative sector is an important and rapidly growing part of the UK economy, estimated to be –Read More–

French cosmetics company Caudalie had previously made headlines in a case decided on February 2nd 2016. In that case, Caudalie had applied for an injunction against an online marketplace to compel it to cease selling Caudalie products, but the Paris Court of Appeal had rejected the claim, thus limiting the possibility for suppliers using selective distribution networks to impose an outright ban on marketplace retailers carrying their products (see our May 2016 EU & Competition Law Update). On June 8th –Read More–