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.

Continue Reading European Commission’s Regulatory Proposals in the Digital Marketplace – The Outcomes of Our Recent Webinar Discussions

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

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.

Continue Reading The General Court Clarifies the Legal Test and Evidentiary Burden to Support Prohibition of Acquisitions under EU Merger Control Regulation

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,

In the midst of the COVID-19 pandemic, not a single day passes without the news on shortages of medicines or medical equipment.  The issue of ‘shortages of essential products and services’ is not specific to the UK, Italy or Spain.  At these challenging times, the shortages are occurring on a daily basis on a global scale.  Here in Europe, the European Commission (Commission) has published a Temporary Framework Communication, dated 8 April 2020 (C(2020) 3200 final), which sets out forms of cooperation among companies, such as in the health sector, which may be allowed in order to tackle and to avoid “shortages of essential products and services resulting first and foremost from the rapid and exponential growth of demand” (such as in medical supplies needed to treat COVID-19 patients).

Continue Reading COVID-19 and Cooperation Among Companies in the Health Sector

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.

Continue Reading The Court of Justice of the EU Gives a Preliminary Ruling Clarifying and Reinstating Certain Aspects of the “by Object” Assessment

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.

Continue Reading Changes to Merger Rules

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. 

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.

Continue Reading Collaboration Between Competitors in Times of Crisis