Competitive Edge: Competition & EU Law October 2021

Our main article this month covers the interplay between competition and procurement law and highlights where the rules go in different directions and what pitfalls you need to be aware of in practice. Following our curated updates from numerous jurisdictions, we also invite you to listen to a new podcast episode in which our financial services and competition law experts discuss the various ongoing streams in Europe surrounding Apple’s Near Field communication antenna - better known as NFCs. Furthermore, you will also find invitations to join our colleagues as they speak at various events and webinars, including our upcoming webinar focusing on how businesses can adapt their distribution agreements to seize opportunities under the new vertical block exemption regulation regime, while remaining compliant with competition rules.

Happy reading – and as always – please let us know should you have any specific topics you wish the Competitive Edge newsletter or podcasts to cover.

Read the full newsletter here >

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In focus

Competition law and public procurement one cannot do without the other or potentially diverging rules

The sustainable, green, digital era is well and truly upon us. Vast quantities of taxpayer money are set to be spent on all sorts of investments that meet EU and national policies. Public tenders and public procurement rules are in place to make sure that this money is spent in a nondiscriminatory, transparent way in a market where the level playing field is safeguarded as well. Contractors who fall short or have violated competition rules can and indeed in some cases, must be excluded from public tenders. To ensure that this money is wisely spent and properly accounted for, the EU relies on the application of procurement rules. But what if there is a lack of competition in the marketplace or companies have colluded during the bidding process? Then both competition law and the procurement rules apply, but not always in an aligned fashion, with different authorities taking the lead.

In this article Janneke Kohlen and Bróna Heenan discuss some of the ways in which these rules diverge and what legal counsel, lawyers and undertakings need to look out for.

Read more > 

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EU 

Another milestone judgment in EU merger control: General Court upholds EC position on gun-jumping by Altice

On 22 September 2021 the General Court confirmed the Commission’s position imposing a fine on Altice for gun-jumping in violation of Articles 4(1) EUMR (obligation to notify the concentration) and Article 7(1) EUMR (obligation not to implement the concentration before it has been notified and cleared) when it acquired telecom operator PT Portugal in...

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For more information contact Hein Hobbelen and Samuel Berneman

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Australia

ACCC introduces proposals for merger reform including specific reforms for digital platforms

Last year, the Australian Competition and Consumer Commission (“ACCC”) flagged its plans to seek reforms to Australia’s merger laws in light of its concerns that big Tech companies are enjoying unprecedented market power. Recently, the ACCC introduced some concrete...

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For more information contact Thomas Jones

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Belgium

Court of Justice rules Belgian excess profit tax policy constitutes State aid scheme

The judgment of the Court of Justice has a long prequel. In 2004, Belgium introduced new rules concerning crossborder transactions of intragroup companies. The new rules allowed companies that are part of a multinational group to reduce their tax basis, in particular in order to avoid double taxation...

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For more information contact Hein Hobbelen or Samuel Berneman

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Czech Republic

Czech courts deal with the concept of competition in recent landmark cases

Czech courts recently handed down two important (and interesting) decisions in which they considered various aspects of competition. One decision related to the liability of data storage service providers for IP infringement, and the other concerned Ryanair’s restrictions on sale of their flight tickets by third parties....

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For more information contact Vojtěch Chloupek or Jiří Švejda

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Denmark 

Denmark has introduced a new regime for screening of Foreign Direct Investments in Denmark

Since 1 September 2021 a large number of foreign direct investments (“FDI”) in Danish companies and agreements with Danish companies will require prior authorisation from the Danish Business Authority (“DBA”). This newly introduced Danish FDI regime will...

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For more information contact Morten Nissen or Alexander Brøchner

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Finland

The limits of time-barring once again being tested by the FCCA

The Finnish Competition and Consumer Authority (“FCCA”) has on 27 September proposed a penalty payment of nearly 1,9 million euros to be imposed on six coach operators for having submitted illegal joint tenders in three tendering processes for public transport services in...

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For more information contact Päivi Tammilehto

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France

New FCA guidelines on fines: minor changes that could lead to higher fines

The French Competition Authority (FCA) recently published an updated version of its guidelines on the method for the assessment of fines (the “New Guidelines”) replacing the previous guidelines adopted in 2011. This new version takes into account the FCA’s decisional practice over the last 10 years as well as...

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For more information contact Thomas Oster or Eliott Costet

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Germany 

German authorities’ joint position on new EU VBER draft

As we have previously reported (see our August Competitive Edge edition here), on 9 July 2021 the EU Commission published its long-awaited draft vertical block exemption regulation (“Draft VBER”) and accompanying guidelines (“Draft Guidelines”). Now the German Federal Cartel Office (“FCO”) and the...

Read more >

For more information contact Dr. Stephan Waldheim or Maren Steiert

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Hungary

Ceramic bricks market: conclusions of the first ever accelerated sector inquiry

The Hungarian Competition Authority (“GVH”) concluded its accelerated sector inquiry, the first ever of this kind of procedure, in relation to the ceramic brick market on 23 September 2021. In its conclusions, the GVH encourages joint purchasing organizations and...

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For more information contact Dániel Arányi or Rebeka Szopkó

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Italy 

Waste-recycling sector under scrutiny in two abuse of dominant position proceedings in Italy

Out of the three proceedings for abuse of dominance opened by the Italian Competition Authority (“ICA”) so far in 2021, two deal with environment protection, and relate, more specifically, to the waste-recycling sector. The first proceeding relates to waste-management of... 

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For more information contact Federico Marini Balestra

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Poland 

UOKiK conditionally clears the Air Liquide / Betamed transaction

Following a year-long investigation, on 27 August 2021, UOKiK gave its conditional approval for Air Liquide’s acquisition of Betamed. Both companies operate, i.a., in regulated markets for medical services funded by the Polish National Health Fund (NFZ). That is why during its...

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For more information contact Piotr Dynowski or Marcin Alberski

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Netherlands 

Dutch ACM imposes first ever fine for alleged Resale Price Maintenance on Samsung

The Dutch competition authority ACM fined Samsung Electronics Benelux B.V. (“Samsung”) almost € 40 million for coordinating the retail prices of Samsung television sets together with retailers. This is the first time the ACM has imposed a fine in relation to resale price maintenance (“RPM”). In short, according to the ACM, Samsung played a central role in...

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For more information contact Pauline Kuipers or Tialda Beetstra

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Spain

CNMC accepts commitments to end two investigations in the film distribution and agricultural markets

In general terms, commitment decisions can be a successful way of ending infringement proceedings by enforcing the commitments offered by formally investigated companies for restrictive practices. Competition authorities consider that this type of decisions can...

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For more information contact Candela Sotés

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Sweden

Major dairy cooperative fined for unlawful exchange of information with competitors during a public tender

Arla Foods AB (“Arla”) is a dairy cooperative owned by dairy farmers. Prior to a public tender for dairy products at the end of 2016, Arla Foods exchanged information about, among other things, prices with a competing company. The framework agreement concerning...

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For more information contact Morten Nissen or Catherine Laflamme Jansson

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The UK

CMA kicks off another investigation into anti-competitive behaviour in relation to football club merchandise 

The CMA launched an investigation into suspected breaches of competition law by Leicester City Football Club Limited and JD Sports Fashion Plc, together with their affiliates, on 23 September 2021. The investigation concerns suspected infringements of Chapter I of the Competition Act 1998 in relation to...

Read more >

For more information please contact Peter Willis, Saskia King or Ariane Le Strat

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Podcasts, Webinars & Events

Financial Services & Competition Law: NFCs
Podcast

In this 20minute podcast, our Competition, Regulatory and Payments experts Scott McInnes (Brussels), Joost van Roosmalen (The Hague) and Johannes Wirtz (Frankfurt) discuss the various ongoing streams in Europe surrounding Apple’s Near Field communication antenna better known as NFCs, including:

• Competition law enforcement by the European Commission vs Apple in relation to
  the NFC antenna
• Enforcement of Financial Services regulations in the Netherlands and Germany

Click here to listen to the podcast >

The European Commission updates its distribution regime: what you need to know
Webinar

28 October 2021 13:00-14:00 CET

The EU Commission recently published its long-awaited draft Vertical agreement Block Exemption Regulation (VBER) and accompanying guidelines. In this webinar, Competition law experts Pauline Kuipers, Jörg Witting and Ariane Le Strat will walk you through the changes and opportunities arising out of the new regime. The focus will be on how businesses can adapt their distribution agreements to seize opportunities under the new regime while remaining compliant with competition rules. The following topics will be covered in the webinar:

• Brief overview of the key proposed changes
• Exclusive, selective and free distribution
• Dual distribution
• Dual pricing
• Franchising
• Online sales restrictions
  • Marketplace bans
  • Restrictions on the use of online advertising channels
  • Geoblocking
• The platform economy

The speakers will also cover the possible divergences and synergies with the new UK regime on vertical agreements.

Find out more and register here >

Green Advertising & Sustainability in the Netherlands
Webinar

14 October 2021 16:00 CET

Join the second webinar in our series on Green Advertising and Sustainability focused on the Netherlands. The webinar spotlights:

• The new Guidelines sustainability claims from the Dutch Authority for the Consumers and Markets (ACM). The ACM has announced that it will start enforcing
  misleading sustainability claims as early as this year on the basis of this Guideline presented by Lisette den Butter & Tessa van den Ende (Commercial group)
• The draft Guidelines on sustainability agreements, in which the ACM offers more room for cooperation between companies in the field of sustainability presented by Tialda Beetstra (Competition & EU group)
• The legal intricacies of upcycling (the reuse of existing materials): a trend that is becoming increasingly mainstream given the development of a circular economy presented by Nina Dorenbosch (Retail & Consumer and IP group)

For more information and to register click here >

Annual ERA Conference on European Competition Law 2021
Hybrid conference

Trier / Online 9-10 December 2021

Key topics include:

• Latest policies and initiatives of the European Commission
• Revision of competition law instruments
• Competition policy and sustainability
• Recent developments in the ICT sector
• Competition and pharma
• Notable judgments of the CJEU in the field of competition law
• Latest cases and developments at national level

Our Brussels based competition partner Anne Federle and Werner Berg (Baker McKenzie) will discuss the ongoing revision of the Vertical Block Exemption Regulation, the Block Exemption Regulations for horizontal cooperation agreements, the Market definition notice and Procedural and jurisdictional aspects of EU merger control. 

For more information and to register click here >

To benefit from a 25% discount please use the code 2021ACcompetition in the 'Comments' field when registering.

VI National conference Main Developments in European and Italian competition law

Rome - 21-22 October 2021

This bi-annual conference organised by the Italian Antitrust Association is one of the main events of the Italian antitrust community. It is a forum for in depth discussion about the developments of public and private enforcement of competition law in the European Union and features the highest authorities on competition law as speakers such as Commissioner for Competition Margrethe Vestager. Our Rome-based competition partner Federico Marini Balestra will take part in a panel discussion on Antitrust and Sport.

For more information on the event click here >

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News & publications 

Digital platform workers, EU action and Competition law

Digital platforms have gained increased relevance during the pandemic, when the demand for "delivery" services boomed. However, across the EU the employment status of digital platform workers remains unclear. In his "News from Brussels" column in this month's issue of Iberian Lawyer magazine, José Rivas explains the actions being taken in this regard by the European Commission and the European Parliament and how this interplays with EU competition law. He also provides a glimpse into how this is playing out in Spain.

Read the article in English >

Read the article in Spanish >

EU’s new trade agenda aims to achieve ‘open strategic autonomy’

As Brussels looks towards the autumn, the EU institutions are taking steps to implement a more assertive, green and sustainable trade agenda. It is a strategy that goes beyond EU trade policy’s more traditional role of removing barriers and ensuring market access, in favour of a more holistic approach with an emphasis on respect for the environment and sustainable development. This shift in focus is summed up in the new Brussels jargon as the “EU’s open strategic autonomy”, a term which indicates ambitions to cut dependence on the U.S. and China, re-shore production and nurture European industrial champions.

Read more >

The authors of this article Francine Cunningham and Lluis Girbau Cabanas are members of the integrated European Union, competition, trade and public affairs practice in Bird & Bird’s Brussels Office which is active in all key fields of EU competition, litigation and trade law, while providing tailored public affairs support for our clients in relation to the European institutions and Member States.

CMA launches Green Claim Code

Following consultation with stakeholders, the UK's CMA published a Green Claims Code and accompanying guidance on 20 September. The Code is aimed at businesses making sustainability claims when selling or promoting goods and services. Nowadays, this captures most goods and services sold in the UK as consumers increasingly demand more transparency on the environmental impact of their purchases. In this article, Saskia King and Ariane Le Strat outline how the Code aims to help businesses understand and comply with their existing obligations under consumer protection law when making sustainability claims.

Read more >

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