Competitive Edge: Competition & EU law news - August 2020
Written By
Partner
Denmark
I'm a partner and co-head of our international Competition & EU group. I also lead the Competition & EU team in Denmark. I have a particular focus on applying competition & EU law as a tool to achieve specific and measurable business objectives for our clients.
Partner
Netherlands
I am a partner in our NL office, based in The Hague, where I was one of its founding lawyers in 2001.
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Keeping you up to date on Competition & EU Law developments in Europe and beyond
In Focus
Data Access Claims Under Competition Law and Data Privacy Requirements
In recent months, several competition authorities have declared that they would seek to use competition law for forcing companies to give third parties access to data collected by them. Enforcing such access obligations is, however, challenging where the data in question is personal data. Based on three short case studies, Bird & Bird partners, Anne Federle (competition law) and Benoit Van Asbroeck (IT & data protection), are exploring in this article whether and how companies can obtain access to personal data collected by another market player.
Bird & Bird news
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Upcoming Webinar- Competition law and product regulations: avoiding pitfalls when joining forces in the food and beverage sector
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Our Competition partners contribute to- Antitrust and Intellectual Property Review - Fifth edition - Now available online
Updates from our jurisdictions
EU
European Commission launches sector inquiry into consumer Internet of Things (IoT)
On 16 July 2020 the European Commission launched a sector inquiry into the Internet of Things (IoT) for consumer-related products and services. The inquiry will focus on "consumer-related products and services that are connected to a network and can be controlled at a distance, for example via a voice assistant or mobile device".
For more information contact Anne Federle.
Australia
ACCC sues Google for allegedly misleading consumers in relation to the use of their personal information
In July 2020, Australia's competition and consumer regulator, the Australian Competition and Consumer Commission ("ACCC") decided to launch proceedings in the Federal Court against Google (LLC) in relation to allegations that it misled consumers about the collection and use of their personal information, including, in particular, on third party websites, in order to enhance the provision of targeted advertising to them.
The ACCC's decision to institute proceedings against Google is a further indication of the regulator's increased preparedness to take action against digital platforms in the Australian market and follows the ACCC's decision to institute proceedings against Google in the Federal Court in 2019 in relation to its alleged misuse of consumers' location data, which is expected to be heard by the Court in November 2020.
For more information contact Thomas Jones.
China
Anti-Monopoly Case (Taiwan Cement Corporation and OYAK): Failure to Legally Declare Joint Venture
On August 13, 2019, the State Administration for Market Regulation ("SAMR") commenced an investigation into Dutch OYAK TCC Holdings B.V. ("Joint Venture"), a joint venture between Taiwan Cement Corporation ("Taiwan Cement") and Ordu Yardimlasma Kurumu ("OYAK") for failing to declare the concentration of business operators.
This update was provided by our partner Allbright Law Offices China.
Czech Republic
Competition vs. environment: City of Prague violated competition law in connection with the rules for parking hybrid vehicles
The Czech Office for the Protection of Competition ("Office") imposed a fine of a total amount of approx. EUR 40,000 on the City of Prague for anti-competitive parking conditions for certain hybrid vehicles in paid parking zones. Under these conditions, free parking was granted to hybrid vehicles that were capable of driving only on electric propulsion and whose power of the internal combustion engine did not exceed 135 kW. According to the Office, this conduct was capable of distorting competition as it favoured sellers of hybrid vehicles with internal combustion engines up to 135 kW whereas the end customers as well as entrepreneurs could take into account the possibility of free parking when choosing a new vehicle.
For more information contact Vojtech Chloupek.
Denmark
Danish media agency accepts fine of € 301,800 for customer sharing
A Danish media agency, Mediacenter Danmark A/S (‘Mediacenter’) entered into a customer sharing agreement from November 2013 to December 2014 with their competitor MPE Distribution (‘MPC’) in the market for distribution of unaddressed mail.
In response to this contravening conduct, the State Prosecutor for Serious and Economic Crime decided to impose a fine of €301,800 on Mediacenter for the infringement of the Danish Competition Act. Furthermore, a member of management in Mediacenter also received a personal fine of € 6,700 while MPC was granted total immunity in exchange for their assistance to the DCCA throughout the case.
For more information contact Morten Nissen.
Finland
FCCA's policy to prohibit recordings of hearings declared unlawful
The prohibition by the Finnish Competition and Consumer Authority ("FCCA") against attorneys recording the hearings of their clients conducted under the Finnish Competition Act was found to be unlawful by the Deputy Chancellor of Justice, responsible for monitoring the lawfulness of the operations of public authorities. The decision stated that the current legislation does not provide grounds for the Finnish Competition and Consumer Authority to impose such a prohibition.
According to the Deputy Chancellor of Justice, attorneys have the right to record the hearings of their clients on the basis of freedom of speech and the rights of defence.
France
Publication of the new French merger control guidelines
The French Competition Authority (FCA) recently published its new merger control guidelines which came into force on 23 July 2020 and replaced the previous ones adopted back in 2013. The adoption of these new guidelines follows a series of public consultations (the last one took place at the end of 2019) and is part of the FCA’s efforts to simplify and modernize merger control in France.
The revision of the guidelines introduces changes to the procedural aspects of notifications before the FCA and provides companies with further information / clarifications on the way in which the FCA carries out the competitive assessment of a merger
For more information contact Florence Leroux.
Germany
Federal Cartel Office approves Intersport’s online platform
Intersport, the world’s largest association of medium-sized retailers of sport products, switched its online sales platform operated by the Intersport subsidiary Intersport Digital GmbH (“IDG”) to a so-called "drop shipment business model". Although the Federal Cartel Office (“FCO”) found that the new business model would affect competition between the individual retailers to a certain extent, the FCO, nonetheless approved the business model due to it overweighing positive competitive effects.
For more information contact Marcio da Silva Lima.
Italy
ICA launches investigation into Apple and Amazon for alleged restrictions in relation to the online sale of Apple and Beats branded products
On 22 July, the Italian Competition Authority ("ICA") announced it had opened an investigation against Apple and Amazon for an alleged violation of article 101 TFEU.
The investigation is aimed at ascertaining whether Apple and Amazon have implemented a competition-restricting agreement to prohibit the sale of Apple and Beats-branded products by electronics retailers, who until then, had legitimately offered Apple and Beats products through the Amazon marketplace, as they were not members of Apple’s official programme.
In the ICA's view, the agreement appears to have the potential to reduce competition, with negative effects for both consumers and business, due to: (a) the raising of barriers to entry into the online sales market; and (b) the possible reduction of incentives to effectively compete on prices for Apple and Beats products.
For more information contact Federico Marini Balestra.
Poland
UOKiK publishes its guidelines on the principles of imposing fines on managers
The Polish Competition and Consumer Protection Act states that sanctions for implementing anticompetitive agreements may be imposed on companies and their managers. In fact, managers who have intentionally permitted their company to engage in such practices can face a fine of up to PLN 2 million (EUR 445,000).
On 30 July 2020, the President of the Office of Competition and Consumer Protection (“UOKiK”) published its Guidelines on the method of setting fines imposed on managing individuals pursuant to Article 106a and 111 of the Competition and Consumer Protection Act. The guidelines are available at the UOKiK’s website (in Polish).
In this article we discuss the details of the principles of imposing fines on managers, as well as the practical implications of these guidelines on the UOKiK's current investigations.
For more information contact Piotr Dynowski.
Spain
The Spanish Supreme Court overrides the restrictions imposed on ride-hailing services ("VTCs")
The ongoing conflict between ride-hailing services (known in Spain as "VTCs"), such as Uber, and the taxi sector has led to a new ruling from the Spanish Supreme Court which confirms the view of the Spanish Competition Authority (the "CNMC") that the restrictions imposed on the VTCs are unjustified and disproportionate .
The limitations contained in the Spanish Royal Decree 1076/2017 were based on the prohibition of transferring licenses within two years and the obligation to inform in advance of each service
The Netherlands
Dutch competition authority offers more leeway for environmental sustainability initiatives
On 9 July 2020 the Dutch Authority for Consumers and Markets (‘ACM’) published its draft sustainability guidelines (‘Draft Guidelines’) containing ACM’s proposed approach to assessing the compatibility of sustainability initiatives with competition law. ACM takes with its Draft Guidelines a leading role in the policy debate on whether (also) competition law should be altered in order to make climate goals attainable. Under the Draft Guidelines, the trade-off is different: the benefits for society as a whole are taken into account instead of only the user group buying the involved products. The Draft Guidelines also include some simplified conditions as a consequence of which it is no longer necessary to quantify the effects of the agreement in all cases. In some cases it will be sufficient to give a full account of the benefits and disadvantages. This will provide companies with more room to enter into sustainability agreements, particularly to achieve climate objectives.
The big question is however whether the Draft Guidelines are in line with European competition law. With the publication of the Draft Guidelines stakeholders have the opportunity to submit their written views on the Draft Guidelines until 1 October 2020.
For more information please contact Mariska van de Sanden or Piet-Hein Eijssen.
UK
Merger thresholds for mergers in critical sectors revised
The UK government has given the Competition and Markets Authority (CMA) further powers to review mergers in strategically important sectors. These steps include making changes to the Enterprise Act 2002 (Enterprise Act) to provide the government with extended powers to scrutinise foreign takeovers to ensure they do not impact upon the UK’s ability to tackle COVID-19 or other related public health emergencies.
For more information contact Peter Willis.
Speaking engagements & Events
Partner Jose Rivas will speak about Connectivity: Access to and Sharing of Data at the Competition Law in Transport Conference organised by InformaConnect in Brussels this December.
September 16 - free webinar hosted by Lexology
Competition law and product regulations: avoiding pitfalls when joining forces in the food and beverage sector
Register now and join Morten Nissen, co-head of our global Competition and EU practice and Nicolas Carbonnelle, head of our Food & Beverage sector group, for an informative webinar covering topics such as platforms, digitalisation, cooperation when introducing new products, exchange of data and the impact of COVID-19. The speakers will illustrate their points with examples to help guide you in your potential collaboration with competitors.
The webinar will take place on September 16th. Read a full description and register here.
Our Australian competition and IP team have recently contributed a chapter to "The Intellectual Property and Antitrust Review" Fifth Edition. In this edition, they discuss topical issues at the intersection of competition (antitrust) law and intellectual property in Australia.
For more information contact the authors: Thomas Jones, Tom Macken (Competition) and Jane Owen (IP)
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