Competitive Edge: Competition & EU Law July 2021

Welcome to the July edition of our newsletter. This month's In Focus article recently won the 2021 Antitrust Writing Award. We hope
you enjoy the read, together with our short updates on key competition law developments from various jurisdictions. 

Download a PDF version of the newsletter here >

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In focus

Badmouthing Your Competitor’s Products: When Does Denigration Become an Antitrust Issue?

In this article, published in the American Bar Association’s publication Antitrust Source, authors Morten Nissen and Frederik Haugsted explore a new form of abusive conduct that has been identified and pursued by different competition authorities across Europe in the past decade, and examine the evolving case law in addressing claims that dominant firms can violate Article 102 of the Treaty on the Functioning of the European Union through ‘denigration’ disseminating negative information to customers about their competitors’ products. Read more >

This article recently won the 2021 Antitrust Writing Award, instituted by leading competition law publisher Concurrences and The George Washington University Law School, in the category ‘Business Articles – Unilateral Conduct’.

For more information contact Morten Nissen

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EU

On 9 July 2021, the European Commission published its long-awaited drafts of the updated Vertical Block Exemption Regulation (“VBER”) and the accompanying guidelines. The drafts are the result of an in-depth evaluation process that started in October 2018. The evaluation showed...

Read more>

For more information contact Pauline Kuipers

Members of the European Competition Network argue in favour of stronger role in enforcement of the DMA

NCAs of EU Member States call for a more active role in the enforcement of the DMA under the supervision of DG Comp. The joint position paper stresses that the fundamental goals of the DMA would be better reached if its enforcement had the possibility to make full use of the knowhow and resources of the national authorities that have accumulated the most expertise within the digital economy...

Read more >

For more information contact Hein Hobbelen

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Belgium

Belgian Competition and Telecoms authorities disagree over acquisition of Mobile Vikings by Proximus

The Belgian competition and telecoms authorities disagree over whether the acquisition of Mobile Vikings by Proximus raises competitive concerns on the Belgian market...

Read more >

For more information contact Hein Hobbelen or Baptist Vleeshouwers 

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Czech Republic

An alternative approach to resolving a potential competition law issue

The Office for the Protection of Competition has applied an alternative approach to a potential competition issue concerning vertical resale price agreements and customer restriction agreements...

Read more >

For more information contact Vojtech Chloupek

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Finland

FCCA calls for expanding the obligation to notify mergers

According to the Finnish Competition and Consumer Authority (“FCCA”), the current national turnover thresholds allow harmful merges to escape scrutiny by the authority. The FCCA suggests that Finnish turnover thresholds be lowered and that the authority be granted the right to require a notification when the primary thresholds are not met...

Read more >

For more information contact Päivi Tammilehto

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France

New tools for the French watchdog as ECN+ Directive is now fully implemented

On 26 May this year, a presidential ordinance (the Ordinance) perfected the transposition into French law of the ECN+ European Directive of 11 December 2018, which aims to strengthen the powers of national competition authorities and increase their effectiveness...

Read more >

For more information contact Thomas Oster and Eliott Costet

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Germany

German Federal Cartel Office queries “50 + 1” rule

The German Federal Cartel Office (“FCO”) voiced concerns that the so called “50 + 1” rule, implemented by the German Football League (“DFL”) to prevent majority takeovers of German clubs by investors may be in violation of the German & EU competition rules. The FCOs assessment of the rule existing since 1999 was self-initiated by the DFL...

Read more >

For more information contact Dr. Stephan Waldheim or Maren Steiert

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Italy

AGCM dismisses allegations against the “formula club system” in the Italian patented seedless grapes market

On 25 May 2021, the Italian Antitrust Authority (“AGCM”) issued a landmark judgment in a proceeding for unfair commercial practices in the distribution and selling of patented seedless grapes in Italy. The proceeding represents one of the few of its kind, not only for the close interlink between IP and competition law, but also because it was initiated under Article 62 of Italian Decree Law n. 1/2012, which gives the competence to the AGCM to investigate commercial practices specifically related to the selling and distribution of agricultural and agri-food products...

Read more >

For more information contact Federico Marini Balestra

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Poland

UOKiK‘s 2020 report shows a stricter approach to competition breaches

At the end of June, the Polish Competition Authority (UOKiK) published its annual activity report for 2020. Last year was particularly notable for UOKiK as it imposed the highest fine in its history, as well as gained new powers. There are many more interesting report findings which show UOKiK’s approach towards competition law matters and the possible direction of its intensified works...

Read more >

For more information contact Piotr Dynowski or Marcin Alberski

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Spain

Amazon and Apple once again under antitrust scrutiny

This month, the Spanish Competition Authority (“CNMC”) has opened formal proceedings against Amazon and Apple for their alleged participation in a conduct prohibited by Articles 1 of the Spanish Competition Act and 101 of the TFEU related to the sale of Apple products in Amazon’s marketplace...

Read more >

For more information contact Candela Sotés.

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Sweden

The Swedish Competition Authority, Konkurrensverket, (“the SCA”) has developed a new method for determining the size of fines for infringements of competition law

The revision of the method for determining the size of fines has inter alia happened as a result of the recent implementation of the ECN+ Directive, which has increased the decision making powers of the SCA, including providing the SCA with the power to impose fines on companies on its own...

Read more >

For more information contact Morten Nissen and Alexander Brøchner

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The Netherlands

Highest Dutch Court upholds annulment of €41 million abuse of dominance fine imposed on railway incumbent

On 1 June 2021 the Dutch Trade and Industry Appeals Tribunal (“CBb”), which is the highest administrative court in the Netherlands, upheld the annulment of the nearly €41 million abuse of dominance fine imposed by the Authority for Consumers and Markets (“ACM”, the Dutch competition authority) on the railway incumbent Nederlandse Spoorwegen (“NS”)...

Read more >

For more information please contact PietHein Eijssen and Matteo Stainer

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The UK

UK Vertical Agreement Block Exemption Order (VABEO): A cautious refresher

The longawaited consultation document setting out the CMA’s proposals on the future treatment of vertical (supply chain) agreements in the UK is finally out. As expected, the CMA will recommend that the rules inherited from the EU following Brexit will be replaced, on their expiry in 2022...

Read more >

For more information please contact Ariane Le Strat

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Webinars & Events 

Bird & Bird & World Competition

Interview with MEP Andreas Schwab on the Digital Markets Act 

Bird & Bird competition partner and editor-in-chief of the World Competition journal José Rivas recently interviewed German MEP Andreas Schwab (EPP), the Rapporteur for the proposed Digital Markets Act (DMA), on the goals and challenges of the DMA. The interview was the first filmed guest editorial for World Competition and also the first time the publication invited a member of the European Parliament to give their insights, indicating the changing nature of the legislative process and the importance of the European Parliament in competition law.

The two discussed technical elements of the proposal, including ex-ante versus ex-post control of competition law, the scope of application, tipping markets and transparency obligations. Mr Schwab also responded to questions regarding the DMA’s impact on innovation, collaboration with national authorities, enforcement and whether the DMA stands to affect the Transatlantic relationship. The interview concluded with the MEP’s thoughts on the ambitious timeline and potential roadblocks in passing the DMA. 

Watch the full interview here >

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EU Competition Law Summer School 2021

16-20 August 2021 Cambridge, UK

Covering all areas of competition law, this residential, all-inclusive event is tailored to the needs of professionals and provides a firm understanding of EU competition law to help them shape their practical strategies. Each day builds on a key theme in competition law, through a combination of lectures, practical discussions, Q&As and case studies ensuring that delegates are proficient in both the fundamentals, as well as currently developing hot topics, which include extended sessions on the digital economy, innovation, sustainability and FDI.

Instructed by top competition law minds, including regulators, inhouse counsel, private practice lawyers and economists, each day will provide ample opportunities to network with peers and experts establishing a pool of invaluable contacts for future business opportunities. Bird & Bird experts Anne Federle and Saskia King will present on Hard Core Cartels and Merger Proceedings. 29 CPD hours and a certificate are awarded on completion. 

Find out more and receive a 20% discount when registering through this link >
(or use VIP code FKW83328BB when booking). 

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Florence Competition Autumn School

Recent Developments in Competition Policy

3-7 October 2021

The Autumn School is an advanced course on recent developments in competition policy in Europe, the USA and the rest of the world. The Autumn School follows an interdisciplinary approach: instructors are well-known academics, practitioners and competition agency representatives, both lawyers and economists. As well as in-person lectures, the Autumn School includes preliminary online activities and daily group exercises.

Partner Hein Hobbelen will give a lecture on "Leniency and dawn raids" and organise a group exercise on dawn raids on 6 October, together with Senior Associate Baptist Vleeshouwers.

16 July 2021: deadline for early bird registration.

Find out more and register here >

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Florence Competition Summer Conference Recording now available

Effective remedies vis-a-vis digital platforms

The European University Institute (EUI) prepared an impressive programme for this conference that took place on 24-25 June. It began with a keynote speech by Margrethe Vestager and included participation of high profile academics, practitioners, officials from national competition and regulatory authorities, EU institutions, as well as industry representatives.

During the event the growing interaction of competition policy and sector regulation regarding possible remedies imposed on digital platforms was discussed. Bird & Bird competition partner Hein Hobbelen provided his input as one of the panelists discussing Data portability. 

See the programme and speakers here >

For more information and to watch the recordings click here >

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Lawrence Freeman presents success factors for Electric Vehicle manufacturers at Transport Futures event Effective remedies vis-a-vis digital platforms

Senior counsel Lawrence Freeman, who joined Bird & Bird in 2018 after having spent five years as the European Counsel of Tesla, Inc., where he founded the European legal department, spoke at the Edison Open House on Transport Futures 2021 on 17 June. The event was hosted in partnership with the London Stock Exchange Group. 

Science journalist and author Vivienne Parry Obe interviewed Lawrence, focusing on the areas of infrastructure, regulations and oversight for electric vehicle (EV) manufacturers. In this interview Lawrence explores the main regulatory barriers to the adoption of autonomous vehicles and the key environmental regulations and frameworks an investor needs to be aware of in the electric vehicle space. 

Watch the 8-minute interview on the conference website >

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Recordings of Bird & Bird webinars on Legal Privilege

Webinar 1: Legal Privilege in investigations – how does it differ across jurisdictions? 

3 June 2021 

Watch the recording of the 1 hour webinar here > 

Webinar 2: Practical guidance when dealing with the issue of legal privilege in the event on an investigation 

9 June 2021 

Watch the recording of the 1 hour webinar here >

Electronic Communication Law course for Administrative and Civil Law Judges

Partner Federico Marini Balestra took part in this training event organized by the EJTN (European Judicial Training Network) which took place on 24-25 June.

He presented to judges on the topic “EU electronic communications framework: main principles Latest legal and regulatory developments on Electronic Communications” and moderated the second day of the event. 

The online course, comprised of impulse lectures by experts and discussion of basic principles and case law, provided training on the latest legal and regulatory developments in Electronic Communications.

For more information contact Federico Marini Balestra

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Bird & Bird news & publications

The Spanish recovery and resilience plan and its implications for state aid and competition law

In his "News from Brussels" column, partner José Rivas takes a look at the Spanish “Recovery, Transformation and Resilience Plan" through the lens of state aid and competition law in this month's issue of Iberian Lawyer. 

Read the article >

UK CMA publishes guidance on sustainability claims

Sustainability (or environmental) claims are increasingly part of the purchasing experience for consumers. Such claims can be made in the context of advertising, on product labels and within accompanying product information such as e-newsletters. Sustainability claims will typically state that a product, service, brand or business has a low or positive environmental impact. Indeed, businesses’ environmental credentials are becoming a key aspect on which they compete with a clear shift in consumer behaviour seeking sustainable products. In the last year, the CMA launched a market investigation taking an in-depth look at environmental claims. And on 21 May, the UK CMA published draft guidance based on the data gathered throughout the market investigation.

Read the article >

Bird & Bird wins Benelux Firm of the Year at the Women in Business Law Europe Awards

We are delighted to announce that Bird & Bird has won the Benelux Firm of the Year Award at the Women in Business Law Europe Awards 2021, in recognition of the continued strength of our women lawyers in this region. For these awards, regional winners are judged on their ability to support the development of women in the legal profession and provide work/life programmes to enable women to pursue legal careers. Criteria include the ratio of women to men lawyers (at all levels of seniority), the retention of women associates to partner level and any relevant diversity initiatives.

More information >

Competition & EU partner José Rivas interviewed by Iberian Lawyer magazine

José Rivas, partner in our Brussels office, has over 30 years of experience as a competition & EU lawyer in the European Union capital. He has also recently taken responsibility for our Spanish Competition practice, promoting it from his position of experience together with Madrid-based senior associate Candela Sotés. Read his interview in Iberian Lawyer, the leading digital monthly magazine that provides information on the legal and business sectors in Spain and Portugal, in which José talks about his career, his take on the Spanish economy and his personal experience as a Spanish lawyer abroad. 

Read the interview in English or in Spanish here >