Competitive Edge: Competition & EU law news - September 2020

In Focus 

Australians don't play (base)ball: How the ACCC is taking on Digital Platforms with lessons from the US' oldest pastime

The release of the draft Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 in Australia has led to concerns being raised by both Google and Facebook. In this article Thomas Jones (Australia), Morten Nissen (EU), and Anthony Rosen (UK) consider both the initial findings of the Digital Platforms Inquiry which have resulted in the Code and how the Code will operate, including its use of an arbitration model adopted from Major League Baseball. 

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Bird & Bird news

• Speaking engagements & events

• Webinar today- Competition law and product regulations: avoiding pitfalls when joining forces in the food and beverage sector

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Updates from our jurisdictions

EU 

Will Google receive a go from the Commission this time around?

At the beginning of August, the European Commission opened an in-depth investigation into the acquisition of Fitbit by Google. Google proposed commitments to address the Commission's preliminary concerns, but it did not manage to convince the Commission. So a second phase investigation was opened to allow the Commission to conduct a more extensive investigation of the transaction. 

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For more information contact Anne Federle.

Australia

ACCC partners with international counterparts to coordinate on cross-border investigations

The Australian Competition and Consumer Commission (ACCC) recently entered into a new memorandum of understanding with its counterpart competition agencies from five other countries in order to share intelligence and investigate techniques to better coordinate competition investigations across borders, including, in particular, those involving companies operating in the digital economy.

The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (MMAC), which came into effect on 2 September 2020, was also signed (virtually) by the US Department of Justice, US Federal Trade Commission, the UK Competition and Markets Authority, the New Zealand Commerce Commission and the Competition Bureau Canada. 

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For more information contact Thomas Jones.     

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Denmark

The DCCA accepts commitments from a digital platform to remove price floor

A Danish digital platform facilitating contact between providers of cleaning services and customers, www.hilfr.dk (‘Hilfr’), operated with a minimum hourly fee as a prerequisite for the providers to offer their services on the platform.

This caused concerns with the DCCA about the creation of a “price floor”, which may limit the competition between the providers. The DCCA considered both the providers on the platform and the platform itself as undertakings that the Danish Competition Act applies to.

As a result, Hilfr committed (1) to cease the use of minimum hourly fees for one of the types of providers on the platform and (2) to ensure that the other type of providers are employees in relation to competition law. The DCCA accepted to make the commitments by Hilfr binding.

For more information, please refer to the decision from the Danish Competition and Consumer Authority available in Danish here, or a shorter version available in English here.

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For more information contact Morten Nissen.     

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France

Merger control: first-ever FCA decision to block a transaction

Nearly a month after issuing its new merger control guidelines, the French Competition Authority (FCA) broke new ground in merger control by issuing a blocking decision regarding the joint takeover of a local hypermarket by undertakings of a competing retail group.

The FCA considered that such transaction would have resulted in a number of anti-competitive effects that could not be offset by any remedy. This is the first blocking decision issued by the FCA since it was given the power to do so in 2009.

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For more information contact Florence Leroux.

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Germany

FCO clears acquisition of dating platform Lovoo

The ProSiebenSat.1 Group strengthens its Internet dating platform business with the acquisition of the US app developer Meet Group. Although the Federal Cartel Office (“FCO”) found, that the acquisition will lead to further concentration in the online dating sector, the FCO, however cleared the acquisition due to the fact that the online dating market is characterized by dynamic growth, market entries and competition.

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For more information contact Marcio da Silva Lima.     

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Hungary

Consumers subjected to unfair B2C commercial practices due to COVID-19

The Hungarian Competition Authority (GVH) keeps a watchful eye over advertisement claims regarding alleged COVID-19 treatments that exploit the vulnerability of consumers in the current pandemic. The GVH initiated an investigation against Max-Immun Kft. in May, because of its advertisement of Vargapeptide product stating that the cosmetic skin care spray containing proinsulin C-peptide was suitable for the treatment of several diseases such as COVID-19, cancer and diabetes. The GVH, as a provisional protective measure, prohibited the company from advertising any of its cosmetic products containing C-peptide until the end of the investigation. The investigation is still pending.

The Authority warns that consumers need to be careful not only with alleged treatments for COVID-19 but also with at-home coronavirus tests.

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For more information contact László Zlatarov

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Italy

Abuse of a dominant position in the electricity market. The Italian Supreme Administrative Court referred several questions relating to Article 102 TFEU to the Court of Justice.

On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU. 

Considering that the Treaty provision (as well as the national provision transposing it) deliberately leaves the concept of "abuse by one or more undertakings of a dominant position on the market" undefined, the CDS raised its interpretative doubts on this provision to the CJ. In particular, the questions raised concern: a) the concept of "abuse" within the meaning of the Article 102 TFEU; b) the evidence of the abuse and/or its restrictive effects, especially in the hypothesis of a "joint dominance", as in the present case.

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For more information contact Federico Marini Balestra.

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Poland

UOKiK investigates rebate practices of 19 retail chains in Poland

The Polish competition authority (UOKiK) has opened preliminary investigations into the rebate practices of 19 retail chains. In particular, the authority will focus on whether retrospective rebates are used to exploit retail chains' contractual advantage towards small and medium-sized enterprises supplying food products.

In its press release, the UOKiK expressed its concerns about two types of practices of retail chains.

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For more information contact Piotr Dynowski.    

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Singapore

Guidance note on collaborations among competitors in response to COVID-19

COVID-19 has presented significant economic challenges to businesses across all industries, disrupting daily operations and global supply chains. During this time, temporary collaborations among competitors have become an important means of sustaining or improving the supply of essential goods and services. The Competition and Consumer Commission of Singapore has released a timely guidance note to provide clarity on the criteria for such collaborations to be deemed to have net economic benefits during these uncertain times, providing businesses some relief and greater certainty from the prohibition against anti-competitive agreements under section 34 of Singapore's Competition Act.

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For more information contact Sandra Seah

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Spain

CNMC proposes a total fine of €47 million for Deloitte, PWC and KPMG among other consulting companies for participating in a bid rigging cartel

In February 2019, the Spanish Competition Authority (CNMC) opened formal proceedings against 25 consulting companies and 8 of their executives for allegedly manipulating and allocating public tenders in the consulting services market between 2009 and 2018. Now there are a total of 36 consulting companies and 14 individuals involved.

On the basis on the information gathered during the dawn raids, the CNMC has proposed to impose a total fine of EUR 47 million to the companies considered liable for their participation in the cartel, including the major firms Deloitte, PWC and KPMG, which shall be fined with EUR 17,2 million, EUR 10,4 million and EUR 10,2 million, respectively

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The Netherlands

Dutch Court reduces cartel fine with 99% due to COVID-19

The Dutch Trade and Industry Appeals Tribunal (CBb) significantly reduced a fine imposed by the Dutch Authority for Consumers & Markets (ACM) on an unidentified undertaking with 99%; from €1 million to €10.000,-. The undertaking was fined for breaching the cartel prohibition. The cartel came to light following a leniency application to the ACM. During the appeal proceedings, the undertaking urged the ACM to lower the fine because of his imminent bankruptcy, including due to the consequences of the COVID-19 pandemic on the undertaking. In the Netherlands, an undertaking has to pay the imposed fine to the ACM before legal proceedings are finalised. The ACM was willing to lower the fine, which the CBb confirmed on reasons of proportionality. This resulted in ACM having to pay back the undertaking € 990.000.

This judgment is one of the first concrete signs of the impact of COVID-19 on cartel cases in the Netherlands. The price that the undertaking had to pay in this case for the reduction of the fine was giving up its other grounds of appeal against the ACM decision. As a result, its violation of the competition rules is now a fact of law laying down a basis for potential civil damage claims.

Read the full article written by Mariska van de Sanden and Tialda Beetstra here, as also previously published on Kluwer Competition Law Blog.

For more information please contact Piet-Hein Eijssen.

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UK

Booking.com and Expedia agree voluntary extension to parity commitments

The CMA announced that Boooking.com and Expedia voluntarily agreed to extend their commitments not to enforce MFN clauses. The formal commitments made by the companies had expired on 1 July 2020. The clauses restricted hotels’ ability to offer different rates on competing online travel agents.

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For more information contact Peter Willis.

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Speaking engagements & Events

Lexology: It's not too late to register! 

Free webinar hosted by Lexology

16 September 5-6pm CET

Competition law and product regulations: 
Avoiding pitfalls when joining forces in the food and beverage sector

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.

If you cannot attend the webinar on September 16th, register as normal and you will receive a link to the on demand recording in your inbox. Read a full description and register here.

Register for the webinar here >