Competition Law Update | February 2017
Published on 21st Feb 2017
As we settle in to 2017, developments in the competition law arena continue apace, both at an EU and national level.
At an EU level, the European Commission continues to shine a spotlight on e-commerce by launching three separate investigations into issues identified in its provisional findings in the e-commerce sector inquiry. The Commission has also given its view in relation to the controversial issue of brand owners’ ability to prohibit the resale of their products on online marketplaces, as part of the Coty case. Finally, judges at the European Court of Justice have been invited to clarify the relationship between two major EU policy areas – agriculture and competition – in the context of a dispute in the French courts (read more here).
At a national level, several jurisdictions are on the Commission’s naughty list for being late in implementing the Damages Directive into national law (read our update on the progress of key jurisdictions here). In the UK, there are signs that the competition and regulatory authorities are showing greater interest in enforcing competition law more rigorously, including using their powers in relation to senior executives in companies which fall foul of competition law (read more here). The CAT similarly showed no sympathy for Flynn Pharma by refusing an application for interim relief by the distributor. The Spanish competition authority is due to undergo substantial structural change, which will see the creation of new agencies as well as new procedures (read more here), which may invigorate competition law enforcement in Spain. Meanwhile, the Belgian Competition Authority has published guidelines in relation to cartels in the field of public procurement.
Contact our international team to discuss the issues relevant to your business.
How the major EU jurisdictions are doing in introducing enhanced rights for victims of anti-competitive behaviour
The January newsletter reported that most EU countries have missed the deadline to implement the Damages Directive. This month we look in more detail at the approach being taken in some key countries, and find that follow-on damages claims can generally be brought in most, even if the new rules are not formally in force.
Flynn Pharma’s application to suspend antitrust order is rejected
We reported in the January newsletter that pharmaceutical manufacturer Pfizer and distributor Flynn Pharma were fined record amounts for charging excessive and unfair prices. In response to the fine, Flynn Pharma claimed for interim relief. On 19 January 2017, the Competition Appeals Tribunal rejected the distributor’s claim.
Marc Shrimpling considers the CAT’s decision and next steps.
Restrictions on resale of branded goods via online marketplaces “justifiable” says the European Commission
On 31 January 2017, the Commission’s Competition Director General presented the Commission’s view that brand owners might be justified after all in prohibiting the resale of their products on online marketplaces, and that such bans are not “hardcore” restrictions of competition law. This runs counter to the stance taken by a number of national competition authorities.
Rebecca Malone explores the context of this announcement, and implications for brand owners.
CJEU hears French endive cartel case and prepares to clarify the limits of competition law enforcement to farming activities
On 31 January 2017, the Court of Justice heard the French ‘endive cartel’ case, in which judges were invited to clarify the relationship between two major EU policy areas: agriculture and competition.
With a decision expected in April 2017, Alexandre Glatz explores the background to the case, and next steps.
Retail pricing and geo-blocking come under scrutiny from the European Commission
On 2 February 2017, the European Commission announced three follow-up investigations into issues identified in its provisional findings of the e-commerce sector inquiry. The three investigations, two of which were launched on the Commission’s own initiative, relate to consumer electronics manufacturers, video games, and hotels.
Farewell to the young CNMC
The Spanish government is concluding the negotiations with the main opposition parties to dissolve the current Spanish Commission on Markets and Competition and replace it with two independent organisations. There will also be a new appointment system for commissioners and new state agencies will be created.
BCA Guidelines: Bid Rigging
In January 2017, the Belgian Competition Authority published the Guidelines on Collusion in Public Tenders to address the issue of cartels in the context of public procurement. The Guidelines mention several mechanisms constituting big rigging and gives examples of what should catch the attention of tenderers.
Yves Stans explores the Guidelines and their implications.
Competition law: more active enforcement raises risk profile
In the UK, making individuals accountable for competition law infringements is increasingly a strategic goal for competition and regulatory authorities alike. Sanctions such as criminal prosecution and director disqualification are wide-ranging and potentially very damaging for individuals involved.