In August 2020 Steptoe’s Antitrust & Competition team in partnership with FTI Consulting hosted two webinars to discuss EU consultations which are likely to affect the regulation of digital space across Europe.
On July 14, 2020, the European Commission adopted its 33rd cartel settlement decision: an unusual one involving a purchasing cartel, in the ethylene merchant market. Four companies were found liable for having colluded for over 5 years to drive down the prices in monthly ethylene merchant bidding markets. Westlake was the first to apply to the Commission and received immunity from fines (which would have been about Euro 190M). The other three were fined in aggregate Euro 260M.
What are the interesting features of this cartel decision? Continue Reading An Unusual Purchasing Cartel: EU Fines Ethylene Purchasers
On June 22, 2020 the Department of Justice Antitrust Division (Antitrust Division) and the Securities and Exchange Commission (SEC) announced that they had signed an interagency Memorandum of Understanding (MOU) to allow for more cooperation and communication between the two agencies.
On June 9, 2020, the UK Competition Markets Authority (CMA) served an initial enforcement order under section 72(2) of the Enterprise Act 2002 on Facebook in relation to their completed acquisition of Giphy.
The CMA has explained in a statement that the proposed investigation would explore whether the acquisition might result in “a substantial lessening of competition in any market or markets in the UK.” The UK merger system is a voluntary one, even where the transaction meets the qualification tests for merger review by the CMA. If a qualifying transaction is not notified, the CMA has the power to require parties to suspend implementation, pending a merger review.
Last year, the Department of Justice Antitrust Division announced that it was creating a Procurement Collusion Strike Force (Strike Force) to focus on bid-rigging in public procurement noting that this area was “particularly vulnerable to collusion.” The creation of the Strike Force followed the Antitrust Division’s recent focus on anticompetitive conduct in government contracting.
The US Department of Justice (DOJ) Antitrust Division recently issued a deferred prosecution agreement (DPA) to Florida Cancer Specialists & Research Institute (FCS), an oncology center in Florida. FCS admitted to allocating medical and radiation oncology treatments provided to cancer patients in Southwest Florida. In addition, FCS had to pay a $100 million monetary penalty, the statutory maximum. This resolution raises two key issues the DOJ Antitrust Division has been focusing on over the last few years: (1) the use of DPAs to resolve cases, and (2) the interplay between the labor markets and antitrust violations.
Click here to read the full analysis.
The General Court has annulled the European Commission’s decision of May 11, 2016, in which it blocked the proposed acquisition of Telefonica UK (O2) by Hutchison 3G UK (Three). The General Court found that the Commission failed to prove that the merged company would harm competition or raise prices and that it had made several errors of law and assessment in its review. While the ruling will be welcomed by the telecoms industry that continues to consolidate, the General Court’s guidance on the EU Merger Control Regulation will be relevant for other mergers and acquisitions, particularly in oligopolistic markets (e.g. four-to-three transactions) where the merger does not result in the creation or strengthening of a dominant position.
On June 2, 2020, the European Commission opened a public consultation to seek views on the contents of the Digital Services Act (DSA), an ambitious legislative package intended to regulate digital markets in EU.
The European Commission will be seeking feedback from a wide range of stakeholders on issues like online safety, freedom of expression, fairness, and a level playing field in the digital economy. Part of the proposed legislative package also includes a proposal for a new competition tool which would allow enforcers to monitor the competitiveness of the digital market.
Steptoe’s EU Competition team have prepared an analysis of the proposed competition tool and highlighted some of the burning questions that need to be addressed by the European Commission.
Click here to read the full analysis.
We welcome your comments on the proposed new tool and will be happy to assist you if you may find useful to speak to us before you consider responding to consultations.
Competition law is a powerful tool that businesses can employ to recover from a crisis. Join members of Steptoe’s EU Competition team for a series of short On Demand videos that will help guide your business through the economic uncertainty post-COVID-19.
Part I – Routes to Market in the New-Normal: A Twist of the Competition Law Kaleidoscope
In this first video, Paul Hughes provides an overview of the potential routes to market in this “new normal” by highlighting what you can do with your distribution agreements and the benefits of removing redundant channel costs. Specific topics for discussion include:
- Rethinking the channels to market
- Withstanding shifts in the market over time
- Vertical agreements as a recovery tool
If you have any questions about the material presented or suggestions for future topics, please contact Steptoe Events. Stay tuned for our next update which will be circulated the coming weeks.
The CMA has provided guidance on its expected approach to merger assessments during the Covid-19 pandemic. While the timescales and substantive assessment of a merger’s effects on competition remain unchanged, the CMA has made a number of adjustments to its working arrangements in order to meet deadlines and progress cases. However, it is likely that some aspects of investigations may be subject to some delay.