Competition Update: August 2018

Written on 17 Aug 2018

This month’s edition focuses on the ways in which national competition authorities are continuing to adapt merger-control to keep pace with the changing economy and to address the challenges posed by an increasingly digital consumer landscape.

One of the most notable steps has been the introduction of “transaction value” thresholds in both Germany and Austria, which aim to catch deals of small companies given high valuations; often tech disruptors. After a year of uncertain application of the new rules, the German and Austrian competition authorities have issued draft joint guidance on how the new thresholds should be applied.

In contrast, the French Competition Authority has confirmed that it will not introduce a transaction-value threshold. It has, however, initiated a review of its competition investigation procedures, including simplifying its merger investigation procedure and reducing the compulsory information requirements and the Minister of Economy has issued its first decision that a merger may not be in the public interest.

Outside merger control, national competition law authorities have begun to focus on the ways in which competition law can be infringed in the labour market. We examine recent decisions from the US and the UK, and consider how businesses can protect themselves from committing a competition law breach.

Across the EU, case law on damages actions continues to develop. In the UK, we consider the Court of Appeal’s claimant-friendly decision in the long-running Mastercard/Visa Multilateral Interchange Fee case, and parallel opt-in and opt-out claims being brought in the Competition Appeal Tribunal in relation to a major truck cartel. The CAT’s decisions on the case management of these claims could have significant implications for future follow-on damages claims. In France, we report on a recent Supreme Court ruling that is likely to have implications for follow-on damages claims.

Finally, we review the successful appeal by Pfizer and Flynn Pharma against a £90 million fine imposed by the CMA for excessive pricing. The judgment throws up key legal questions about whether competition authorities should act as price regulators, and may have serious implications for the CMA’s ongoing enforcement drive against large pharmaceutical companies.