Competition Law Update | December 2016

Written on 7 Dec 2016

Effective enforcement of competition law continues to be a key focus of European competition authorities, serving as a warning to businesses not to transgress the boundaries of the law.

The French Competition Authority has in November issued the highest fine ever for merger control ‘gun-jumping’ (read more here), while the European Commission has found that airlines have received illegal State aid in Austria, which could mean they will have to pay this back, plus interest (read more here). Further, the National Anti-Corruption Authority in Italy has published guidelines to clarify the application of the Public Procurement Code (read more here). The Belgian Competition Authority has actively asserted its jurisdiction in various cases (read more here).

Private enforcement of competition law is also gaining momentum as an alternative mode of enforcement. The Commission has published a study setting out a checklist for judges to follow when assessing whether cartel-related overcharges were passed on to customers (read more here).

Regulation of the digital economy continues to be a focus of European competition authorities, particularly in the area of online sales. The Dutch Authority for Consumers and Markets is currently exploring the business models of online platforms, in order to consider the best method of regulation (read more here). The UK’s CMA is also focused on online sales, and warned retailers in the lead-up to the shopping phenomena Black Friday and Cyber Monday to beware of restricting the prices online retailers can charge (read more here).

Contact our international team to discuss the issues relevant to your business.

Online platforms under investigation in the Netherlands: Is data collected by online platforms a source of market power?

Online platforms have revolutionised access to information and play an important role in supporting innovation and the overall growth of the Digital Single Market. The European Commission made clear in May 2016 that it will not implement a one size fits all ‘platform law’ but will instead regulate online platforms on an industry-to-industry basis.

Against this background, the Dutch Authority for Consumers and Markets has launched a market study to look closer at the business models of these online platforms. We explore this study and implications for businesses here.

The French Competition Authority issues the highest merger control “gun jumping” fine ever

The French Competition Authority has issued the highest ever fine for merger control ‘gun-jumping’. The €80million fine was handed down to Altice after it jumped the gun on two mergers by, among other things,  preparing the launch of a new range of Internet access offers and receiving commercially sensitive information from the target. Alexandre Glatz explores the decision and its significance here.

How much of a cartel’s overcharge was borne by the ultimate customer?  A Commission study sets out some factors for judges to consider

Business and individuals who have been overcharged by cartels are increasingly seeking to reclaim their losses, and one of the key battlegrounds is whether any overcharge was passed down the supply chain.  To assist the courts the Commission has recently published a ‘study on the passing-on of overcharges’. The study discusses the economic theory behind ‘pass-on’ and, importantly, provides a 39-step ‘checklist’.  This aims to give judges the tools to assess the plausibility of expert reports which deal with the question of whether cartel-related overcharges were passed on by intermediate purchasers to their own customers. Penny Coombs discusses the implications of the study here.

Black Friday and Cyber Monday: competition in action or a competition law headache?

In the lead up to Black Friday and Cyber Monday, online retailers were warned of the dangers of restricting retailers’ pricing freedom. Such behaviour is always subject to Competition law, but risks were heightened as the phenomena of these shopping days once again swept over from the Atlantic. This is a time that retailers are increasingly treating as a prime opportunity to draw ahead of their rivals with a host of attractive short-term discounts and price promotions. Read more here.

Airlines ordered to repay subsidies received from Austrian airport under EU State aid rules

A recent announcement by the European Commission underlines risks for private businesses receiving State aid. The Commission found that certain airport services and marketing agreements concluded between an Austrian airport operator and three airlines caused illegal State aid. The airlines may have to repay the illegal State aid, plus interest. Marc Shrimpling explores the recent announcement here.

Grounds of exclusion from participation in public procurement procedures and antitrust infringements

Following amendments in April 2016, the Italian Public Procurement Code provides new grounds for exclusion from participation in a procurement procedure. To clarify such grounds for exclusion, the National Anti-Corruption Authority has published Draft Guidelines. Among other things, the Guidelines interestingly suggest that the implementation of an antitrust compliance programme may be considered a self-cleaning measure of the purpose of avoiding such exclusion. Read more here.

An update on competition law in Belgium

Various developments in Belgium have shown the Belgian Competition Authority’s willingness to assert its jurisdiction and enforce competition law. This can be seen in the context of a potential cartel, anti-competitive clauses in commercial agreements, and an alleged abuse of dominance. Yves Stans provides an update on Competition law in Belgium here.