Competitive Edge: Competition & EU Law January 2021

Welcome to the January edition of Competitive Edge.

As the new year begins, we would like to take this opportunity to send you our best wishes for 2021 on behalf of Bird & Bird's entire Competition & EU group.

This month, our main article dives into the new ex ante regulatory regime that may soon apply to Big Techs following the EU's publication of the draft Digital Markets Acts at the end of 2020. Despite Brexit, the UK is following suit as it has also published proposals in this regard, thus promising some interesting developments in the digital sector in the near future.

Furthermore, as always, we provide you with an overview of the latest key competition law developments across Europe and beyond with brief updates from our international network.

Also available as PDF >

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Bird & Bird has teamed up with safeREACH, a provider of user-friendly and reliable alarm and communication systems to cope safely with crises and incidents, to bring our clients a new tool that helps navigate through surprise investigations conducted by regulatory authorities.

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In focus

“Big Tech” under pressure - new Rules for Digital Platforms in the EU and UK

At the end of 2020 both the EU and UK published ground-breaking proposals which threaten to revolutionise the governance of digital platforms. The EU published the draft Digital Markets Act which will seek to establish an ex ante framework to govern “Gatekeeper” digital platforms. The UK Government confirmed that it will establish a new Digital Markets Unit and introduce a new enforceable code of conduct governing digital platforms designated as having “Strategic Market Status”. These measures, once adopted, combined with strong enforcement and fining powers, promise to create a new supervisory regime governing “Big Tech” complementing and building on existing competition law enforcement tools. The tide is certainly turning and we can expect a bumpy road before the final measures are adopted. We will be watching the developments closely. Building on our outlook from the December edition, we take a closer look at the proposals.

Read more >

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Updates from our jurisdictions

EU

Commission report on the implementation of the Damages Directive

On 14 December 2020, the European Commission published a report on the implementation of Directive 2014/104/EU of the European Parliament and of the Council (“the Damages Directive”). Overall, the Commission is positive about the implementation of the Directive in the Member States, but the Directive lacks sufficient application in practice.

Read more >

For more information contact José Rivas.

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China

Key Gaps Filled in the Proposed Guideline in the Internet Economy

The State Administration for Market Regulation (SAMR) promulgated the Anti-monopoly Guide for the Platform Economy Sector (Draft for Comment) (“Guideline”) on November 10, 2020, which put forward the rules to many new regulatory matters, reflecting the new trend of legislation and law enforcement. The Guideline will have a significant impact on enterprises engaging in the platform economy especially on giant ones such as Alibaba, Tencent, JD and other dominant e-commerce platforms in China.

Read more >

This update was provided by our partner Allbright Law Offices China.

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Czech Republic

Collecting societies OSA and INTERGRAM fined for forcing providers of accommodation services to pay copyright levies

At the end of November 2020, the chairman of the Czech Office for the Protection of Competition ("Office") confirmed the first-instance decision by which a fine of CZK 10.7 million (approx. EUR 408,000) was imposed on OSA (a collecting society for music authors’ rights) for abuse of dominant position. The Office also imposed a fine of CZK 20.8 (approx. EUR 795,000) on INTERGRAM (a collecting society for music performers and studios) in a similar case. According to the Office, OSA and INTERGRAM abused their dominant position by forcing providers of accommodation services in the Czech Republic to pay copyright levies without taking into account the occupancy of rooms in accommodation facilities.

Read more >

For more information contact Vojtech Chloupek.

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Denmark

Proposed changes to the Danish Competition Act

As a part of the implementation of the ECN+ Directive, a new competition act has been proposed by the Danish Government. The proposed competition act entails several extensive and intrusive changes to the current competition act, which are expected to enter into force on 4 February.

In this article, we will take a closer look at the most prominent changes that this proposed competition act entails.

Read more >

For more information contact Morten Nissen.

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Finland

A lenient stance on price recommendations by the Finnish Market Court

On 15 December 2020, the Market Court agreed with the submission of the Finnish Competition and Consumer Authority ("FCCA"), that the regional association of driving schools in Finland's most populous region, Uusimaa, ("Association") as well as the Association's Board members, had breached competition law by issuing price recommendations which sought to increase the price level of driving lessons. However, the Market Court reduced some of the fines proposed to it by the FCCA quite drastically, and even more surprisingly, refrained from imposing fines altogether to some of the players despite a finding of a competition law infringement.

Read more >

For more information contact Päivi Tammilehto.

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France

The FCA publishes its roadmap for 2021

After a year strongly marked by the unprecedented Covid-19 health and economic crisis, the French Competition Authority ("FCA") recently published its roadmap for 2021. Continuity and novelty are the two words that can summarise the FCA’s 2021 priorities.

• Continuity: given that some of these priorities had already been included in its 2020 roadmap, in particular with regard to competition law concerns in the digital sector or relating to sustainable development.
• Novelty: special attention will be paid to Covid-19 related issues in the context of merger control, while the FCA’s powers will finally be strengthened following the (long awaited) transposition of the ECN+ Directive which will complement the FCA’s willingness to modernise its tools.

Read more >

For more information contact Florence Leroux.

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Germany

"Digitalisation Act” approved – Germany pioneering antitrust regulation of digital markets

On 14 January 2021, the German parliament approved the so long discussed reform of German competition law which was now also confirmed by the second parliamentary chamber - the “Bundesrat”. The innovations to be implemented in the German Act against Restraints of Competition (“ARC“), will in particular provide the Federal Cartel Office (“FCO”) with regulatory tools to impede market dominant companies active in the digital (platform) markets from possible abuses of their competitive dominance. The German approach assigns a significant pioneer role to Germany in the ever more dynamic combat against anti-competitive practices characterizing the digital economies.

Read more >

For more information contact Marcio da Silva Lima.

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Italy

Final act in the judicial saga on the TV broadcasting rights for Italian football championship

On 28 December 2020, the Italian Supreme Administrative Court issued a judgment closing the dispute concerning the assignment of the Lega Serie A broadcasting rights for the soccer seasons 2015 to 2018. The Court considered the agreement between Sky and RTI-Mediaset to be in line with Article 101 TFEU and compliant with the principle of the no single buyer rule.

Read more >

For more information contact Federico Marini Balestra. 

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Singapore

Prospective Refinements to CCCS’ Competition Guidelines in 2021

Amid the disruptions caused by COVID-19, the Competition and Consumer Commission of Singapore is taking strides in 2021 to update its guidelines to better address unique challenges posed by the digital economy such as market definitions for multi-sided platforms, market assessments in dynamic digital markets, lock-in effects and the importance of data.

Read more >

For more information contact Sandra Seah.

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Spain

CNMC opens formal proceedings against the Spanish Football Federation

The sale and use of audio-visual football rights in Spain has always been in the spotlight due to frequent controversies between the Spanish Football Federation (“RFEF”), the national professional football league (“LaLiga”) and the football clubs.

Last year, ProLiga – i.e. the third and second division “B” Clubs Association – lodged a complaint before the Spanish Competition Authority (“CNMC”) concerning an alleged abuse of a dominant position by the RFEF in the marketing and exploitation of audio-visual rights. The CNMC has now decided that there is sufficient evidence of a potential restrictive conduct to open formal proceedings against this entity.

Read more >

For more information contact Candela Sotés.

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The Netherlands

Dutch competition authority focuses supervision on algorithmic applications

On 10 December 2020, the Dutch Authority for Consumers & Markets ("ACM") published its position paper on the supervision of algorithmic applications (Position Paper on Supervision of Algorithms). On the same day ACM also announced the launch of a pilot investigation in which ACM will map out what types of information it needs in order to scrutinize in future investigations and supervision activities the use by companies of algorithmic applications.

The publication of the Position Paper on Supervision of Algorithms and the pilot investigation follow ACM’s earlier publications in 2020 of its ‘Consumer protection guidelines regarding the use and boundaries of online persuasion techniques’ and ACM’s ‘Rules of thumb for online platforms’ which also point to the relevance of algorithmic applications.

These developments at the national level are all the more relevant in light of the expected publication by the European Commission in Q1 2021 of its legislative proposal on artificial intelligence following the publication of the Commission’s White Paper on AI in 2020.

Read more >

For more information contact Piet-Hein Eijssen.

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The UK

UK Competition Law post-Brexit – what is the impact of the Trade and Cooperation agreement?

The Trade and Cooperation Agreement will govern the future relationship of the UK and the EU. This article will examine some key areas to note for Competition law, reviewing important changes to state aid regulation and the Competition and Market Authority’s function.

Read more >

For more information please contact Peter Willis.

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Webinars & Events

GCR Interactive: Telecoms, Media & Technology conference

Bird & Bird is proud to sponsor GCR's virtual Telecom, Media and Technology conference, which will bring together academics, top government enforcers, in-house counsel, economists and private practice lawyers from across the world to debate the latest developments in regulatory models, merger policy and FDI controls in the digital sector.

On 3 March, our Brussels partner Hein Hobbelen will moderate a panel during the session entitled 'The business view'. In this debate, leading in-house counsel will reflect on the insight from previous panels and share how their companies, in the face of stricter regulations, will navigate this new frontier.

The conference will take place on March 2-3. Click here to register. Registration is free for in-house counsel.

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Global Competition Law Centre (GCLC) 16th annual competition law conference 

On Friday 29 January 2021, our Brussels partner Scott McInnes will co-present a report at the GCLC annual competition law conference. The report will provide an ex post analysis of the enforcement by the European Commission of competition law in the payments sector. During the same afternoon, a report on the Microsoft cases will also be presented.

The conference will continue on Friday 5 February with presentations of the reports on buyer power cases and pharmaceuticals. And on Friday 12 February with reports on cartels and on rebate cases.

Click here for more information and to register to this free event.

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Digital Services Act

Should the EU police the internet?

Webinar recording

Watch our Regulatory and Public Affairs team's Lexology-hosted webinar held on 12 January, to understand what the Digital Services Package will mean for your business.

The publication of the proposed Digital Services Package marks the start of the biggest overhaul of EU rules governing the digital market in two decades. The package is a flagship project of the European Commission’s plan to create ‘a Europe fit for the digital age’.

In this webinar our Regulatory and Public Affairs experts Francine Cunningham, Feyo Sickinghe and Anthony Rosen delve into questions including:

• What new responsibilities will large technology companies face?
• Which binding rules are foreseen to tackle illegal and harmful content online?
• Will new corporate processes be needed to vet online vendors?
• What information should consumers have about the ads that they see online?
• How can the European Union enforce new rules in relation to multinational companies?
• What are the potential fines or risks for companies that fail to comply?
• Will the new rules curb the market power of the largest technology companies?
• How does the Digital Services Act sit alongside other EU initiatives in the data and IP field?
• How can interested parties get involved in the public policy debate?

Click here to watch the recording of the webinar.

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State aid and sustainability: what does the future hold for aviation?

Video

As hard-hit airlines around the world fight to survive the Covid pandemic, many are increasingly relying on state aid for survival. Governments are seeking to find ways to nudge national infrastructure towards a more sustainable operating model, attaching green conditionality to this aid.

How can airlines take advantage of this assistance to aid recovery whilst ensuring they comply with green conditions and sustainability requirements? Watch our video from Aviation and Competition subject matter experts Simon Phippard, Jose Rivas, Bróna Heenan, Rachel Welch-Phillips and Pauline Van Sande to find out more.

Click here to watch the video.