Competitive Edge: Competition & EU Law May 2021

Welcome to the May edition of our newsletter. Skies are clearing, both metaphorically with the roll out of vaccines and literally as summer approaches. This month, our In Focus article looks at the European Commission's Guidelines of the Article 22 EU Merger Regulation's referral mechanism. This long existing provision is dusted off to enable the Commission to scrutinize transactions that do not meet national or EU thresholds but may nonetheless raise competition law concerns.

Download a PDF version of the newsletter here>

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In focus

EU merger control – new guidance brings uncertainty – particularly for tech and pharma acquisitions

A hot debate is triggered by the European Commission’s controversial new Article 22 Referral Guidance. Is it really the Commission’s game plan to claim jurisdiction over potential “killer acquisitions”? Should international companies in digital and pharma sectors worry that even small transactions face scrutiny by the Commission even if no domestic merger thresholds are triggered and even after completion?

Read more>

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EU

Recent months have seen a flurry of legislative, regulatory and soft law initiatives and proposals that impact the digital sector. This article briefly answers some of the questions we regularly receive, putting the main elements of the most important recent initiatives together...

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For more information contact Hein Hobbelen

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Czech Republic

Summary of 2020 and challenges for 2021 in Czech competition law

The Office for the Protection of Competition published an annual report summarizing its significant activities in 2020 and outlining the agenda for 2021. It seems that the electronic communications, pharmaceutical, transportation, construction and ecommerce industries will be...

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For more information contact Vojtech Chloupek or Jiří Švejda

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Denmark

Danish Competition Appeals Tribunal upholds finding of dominance on the market for distribution of unaddressed mail

On the 27th April 2021, the Danish Competition Appeals Tribunal upheld a June 2020 decision by the Danish Competition Council. The DCC concluded that FK Distribution, as the biggest distributor of unaddressed mail (print circulars) in Denmark, had abused its dominant position...

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For more information contact Morten Nissen or Frederik Haugsted

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Finland

A change of M.O. on divestments in merger control

For the first time in Finnish merger control history, parties to a merger committed to an upfrontbuyer provision. On 19 April 2021, the Finnish Competition and Consumer Authority approved the merger between Altia Oyj and Arcus ASA subject to conditions...

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For more information contact Päivi Tammilehto

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France

FCA keeps a close eye on BigTech entry into the payment industry

The French Competition Authority has recently issued an opinion closing the sector inquiry it launched in the payment sector in January 2020. The FCA’s report mainly focuses on the disruption brought by new technologies and new market players in the sector, in particular BigTech...

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For more information contact Florence Leroux or Eliott Costet

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Germany

German Federal Cartel Office against Facebook: now the European Court of Justice will decide

Is Facebook abusing its dominant position in the market by collecting data on its own platforms and on thirdparty websites and combining it in a large data pool? The Federal Cartel Office (“FCO”) has decided that unless the users consent to the use of the data, Facebook is abusing its position...

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For more information contact Maren Steiert

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Italy

Italian Competition Authority’s wishlist for 2021: an overview of the recommendations for the Italian annual Competition Law

Alongside its enforcement powers, the Italian Competition Authority also has a legislative advisory role where it issues proposals to the Italian Government, in view of the annual competition law. The Authority’s 2021 recommendations, issued on 23 March mostly relate to areas...

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For more information contact Federico Marini Balestra or Lucia Antonazzi

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Poland

UOKiK publishes new guidelines on fines

Earlier this year the Polish Competition Authority (“UOKiK”) published its guidelines on the rules of imposing and calculating fines for companies breaching competition law. Although the New Guidelines provide for increased transparency of fining policy, the fact that UOKiK will...

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For more information contact Piotr Dynowski or Marcin Alberski

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Spain

ECN+ Directive (finally) transposed into Spanish law

On 29 April 2021, the Spanish Royal DecreeLaw 7/2021 entered into force, modifying the Spanish Competition Act (“LDC”) due to the transposition of the Directive 2019/1 – known as the “ECN+ Directive” – which aims to achieve a more effective application of competition rules by the National Competition Authorities (“NCAs”) and to improve the functioning of the...

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For more information contact Candela Sotés.

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The Netherlands 

Dutch regulator publishes market study and guidelines to steer the rollout of fibreoptic broadband

On 6 May 2021, the Netherlands Authority for Consumers & Markets (“ACM”) published its updated market study into the rollout in the Netherlands of fibreoptic broadband networks for households (FibertotheHome). The ACM started its FttH market study in April 2019 in response to...

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For more information contact PietHein Eijssen or Matteo Stainer

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The UK
Foreign Investments UK National Security and Investment Act adopted

On 29 April 2021, the UK National Security and Investment Bill was granted Royal Assent and has therefore formally become law. The new National Security and Investment Act (NSIA), is not yet in force but it is expected to become effective later this year...

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For more information please contact Anthony Rosen

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China
SAMR Imposed Administrative Penalties on Alibaba for Abusing its Dominant Market Position

On April 10, 2021, China’s watchdog, the State Administration for Market Regulation (“SAMR”) released its decision on imposing a RMB18.228 billion (USD $2.8 billion equivalent) on the ecommerce giant Alibaba...

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

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Webinars & Events 

Legal Privilege in investigations webinar series

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

Thursday 3 June, 15:00 16: 00 CEST

Join us for a lively panel discussion assessing the differences in the rules of legal privilege between jurisdictions around the world in the context of an investigation. During the discussion our international group of panelists, representing the UK, the EU, Middle East, the PRC and U.S., will dissect:

• why exactly legal privilege is so important,
  
  
• the different types of privilege,
  
  
• the public enforcement perspective,
  
  
• the key differences between civil and common law countries, and
  
  
• what legal professional privilege means to you in practice

Moderator: Evelyn TjonEnFa (Partner, EU)

Panellists: Sophie Eyre (Partner, UK), Pauline Kuipers (Partner, EU), Lucas Pitts (Partner, Middle East), Reid Whitten (Partner, Sheppard Mullin, U.S.), Sven-Michael Werner (Partner, PRC)

We’ll provide legal detail in addition to a highlevel business summary overview.

Register for the event here.

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

Wednesday 9 June Additional details for this webinar will follow shortly

We will be hosting a second webinar on the practicalities of dealing with legal privilege during investigations. During the discussion our international group of panellists, representing the UK, the EU, Middle East, the PRC and U.S., will dissect:

• Employment issues Internal Investigations and handling the employment aftermath, negotiating employee exits, the concept of “iniquity”, and training and managing staff
  
  
• Data issues How the data protection authorities approach legal privilege during investigations, and how legal privilege can help in the context of data subject access requests
  
  
• Regulatory issues How the UK regulators/competition authorities approach LPP during investigations
  
  
• Forensic Services Practices for privilege logging are broadly used in litigations, disputes, regulatory inquiries/investigation and DSAR. Disclosing parties are responsible for supporting their claims of privilege

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Bird & Bird news 

Best Lawyers in Australia 2022

Congratulations to Sydney based partner Thomas Jones, who has been listed in Best Lawyers in Australia 2022 in the following categories:

• Competition Law
  
  
• Telecommunications Law
  
  
• Media Law and 
  
  
• Regulatory Practice 

Milano Finanza Best Lawyers and Best Corporate Law Firms 2021

Congratulations to Rome-based partner Federico Marini Balestra and our Italian Competition & EU team for being ranked in the 'Best Lawyers' and 'Best
Corporate Law Firms' category by the business review Milano Finanza.

Co-head of our Competition & EU Group Pauline Kuipers and partner Janneke Kohlen, both based in The Hague, have been recognised by The Legal 500 as 'Leading individual' and 'Next Generation Partner'.