At the beginning of April 2020, the Court of Justice of the EU (CJEU) handed down a preliminary ruling in Case C-228/18, Gazdasági Versenyhivatal v Budapest Bank Nyrt. and others and thus clarifying and reinstating certain aspects of the “by object” assessment. As a reminder, it is a well-established EU competition law principle that if a restriction is considered to be anticompetitive by object, the competition authorities are not required to examine its effects. For example, price fixing, input restrictions, bid-rigging, collective agreements to boycott, resale price maintenance are considered to have negative effects, in particular, on the price, quantity, or quality of goods or services, that they can be regarded as falling within Article 101(1) of the Treaty on Functioning of the EU (TFEU) without the need to demonstrate any actual or likely anti-competitive effects on the market.
At the EU level, Commission staff have adapted to working from home but are aware of the challenges in dealing with tight timeframes presented by merger notifications (including securing meaningful input from industry participants which may be affected by a transaction). The Commission has therefore issued an appeal to request parties to delay merger filings as much as possible. Other authorities have indicated that review timeframes may be extended.
In these extraordinary times, economies around the World including Member States are pumping money into their economies. Businesses and whole sectors are crying out for special support. State support in the EEA above a low de minimis threshold is subject to strict state aid rules which requires pre-clearance by the European Commission under strict conditions. Illegally granted state aid can be required to be clawed back. In the context of Brexit, the UK remains bound by the EU state aid rules during the transition period up to the end of December 2020. The Commission has until the end of March 2020 to file challenges to aid granted by the UK. The shape of post-Brexit UK subsidies is unknown.
The Commission has granted speedy clearance to certain state aid applications by a number of member states, including Denmark, Germany, Italy, Portugal and France. It adopted on 19th March 2020 a Temporary Framework for State Aid measures to support the economy during the COVID-19 crisis. It will expire on 31st December 2020. It is focussed on businesses which face difficulties as a result of the pandemic but which were not in trouble on 31st December 2019.
This Temporary Framework is considered in more detail in our State Aid Alert which can be accessed here.
It is important to remember that as businesses struggle in these times to cope with issues like distribution, sourcing ingredients, components and other resources, they may look to collaborate with rivals. In fact, many businesses have been doing exactly that. Collaboration between competitors can be perfectly benign and may no anti-competitive effects (for example, in setting standards, lobbying efforts). However, competition rules do apply and coordination of prices, market sharing, cost allocation, coordinated output reductions or sharing competitive sensitive information, would be prohibited. Some restrictions are regarded as ‘hard core’ and rarely worthy of exemption (price fixing, customer and market allocations and quantity restrictions). Penalties for infringement could lead to significant fines and possible private damages litigation.
Perhaps the first authority to warn about the perceived risks, the UK’s CMA issued a warning on 6rh March 2020 to traders about taking advantage of the COVID-19 pandemic. CMA chief executive Andrea Coscelli said: “We urge retailers to behave responsibly throughout the coronavirus outbreak and not to make misleading claims or charge vastly inflated prices. We also remind members of the public that these obligations may apply to them too if they resell goods, for example on online marketplaces.” This warning was triggered by the rising cost of hand sanitisers. The CMA went on to warn that it would take enforcement action against those suspected of such conduct and, if necessary, would also consider requesting the Government to introduce price controls. It has created a taskforce to monitor market behaviour during the crisis. Details about the Taskforce, its mandate and how to lodge complaints can be found here.
In recent months we have seen a number of horizontal mergers being scrutinized under national and EU merger rules. Since the fall-out from the Siemens/Alstom merger refusal, we have also seen a number of ministers from member states, including Poland, France and Germany, call for increased tolerance and indeed support for the emergence of so-called ‘national champions’. Recently in March there have been calls for companies to ‘reshore’ operations which they had outsourced to other countries – including not only third countries but also other member states. Targets included Peugeot and Renault and there have been calls for the European Commission to provide support for such moves.
On January 30, 2020, The European Commission fined a group of companies belonging to the Comcast Group, including NBCUniversal, €14.327 million for illegally restricting sales of film merchandise products in Europe. The fine already includes a 30% reduction that was awarded for NBCUniversal cooperating with the European Commission beyond what is required by law.
On January 31, the UK exited the EU, after more than three years of constitutional turmoil. The UK now embarks on a year of transition and negotiations as it heads out into a world of new trade relations, with opportunities and challenges in equal measure. This is a watershed moment for all companies who trade in or out of the UK or the EU. Whether trading in goods or services, companies face strategic re-assessments not just of where they trade, but how they organize their trading activities: upstream for inputs and downstream to their customers and markets. How will they be affected – from a regulatory, trade, customs, commercial, investment and disputes perspective?
On December 17, 2018, the European Commission (EC) imposed on the clothing company Guess a hefty penalty of EUR 40 million for allegedly severe restrictions relating to the online sales activities of its authorized distributors. The full text of the Decision was published by the EC on January 25, 2019.
CMA Brexit Draft Guidance
On 28 January 2019 the UK Competition and Markets Authority (‘CMA’) issued draft guidance on the effects of any no-deal Brexit on the CMA’s functions and its enforcement approach. This guidance has been made more urgent by the continuing UK political divisions that have plagued the Brexit process and which could see the UK crash out of the EU without any deal in place on 29 March 2019.