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.

Continue Reading Sale Restrictions in the European Union Attract Large Fines

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.

Continue Reading Guess Where Enforcement Stands Post E-Commerce Sector Inquiry?

interIn this briefing, we describe how certain employment practices, such as no-poach or wage-fixing agreements, may infringe competition law, a topic that has recently taken centre stage in the US and is also firmly, although more discretely, on the radar of antitrust authorities in Europe, but perhaps not yet on that of companies. Here is why it should be.

Continue Reading New Year’s resolution for EU antitrust compliance teams: “Putting HR practices on my radar screen”

It is nothing short of a Christmas miracle. After years of quasi-radio silence, the Pay-TV case has finally made significant progress and has reached not one, but two significant milestones: on December 12, the General Court published a judgment largely confirming the European Commission’s (EC) approach of the case, i.e. that geoblocking clauses in broadcasting contracts amount to a restriction of competition by object (case T-873/16). A week later, on December 20, NBC Universal, Sony Pictures, Warner Bros and Sky offered commitments to settle the case. The EC is currently market testing the commitments.

These developments suggest that the EC is on track to win a major battle against geoblocking in the audiovisual sector. Below we take a closer look at these developments, as well as their potential implications on the future of the EU broadcasting industry.


Continue Reading A Holiday Reading: Pay-TV Case (Finally) Moves Forward

On July 13, 2018, the Paris Court of Appeal (Cour d’appel de Paris) finally upheld Caudalie’s marketplace ban, putting an end to a five-year legal saga. This judgment is highly interesting in that it goes beyond the landmark 2017 Coty judgment by ruling that platform bans may, under certain circumstances, apply to non-luxury products – a question that was left open in Coty.

Continue Reading More on Platform Bans: Caudalie Wins a Hard Fought Battle in France

Today is the day: on Monday, December 3, the Geoblocking Regulation (the Regulation) starts applying to online businesses operating across several EU Member States. For those who feel like they need a refresher, below we provide an overview of what is in the Regulation – as well as what is not.

Continue Reading Geoblocking Regulation: Last Minute Recap Of What’s In It

On 20 November 2018, the European Parliament, the Council and the Commission reached a political agreement on the proposed EU framework for screening of foreign direct investments (FDIs).

The proposal, put forward by the Commission in September 2017, aims at protecting key strategic industries and assets in Europe whilst maintaining the EU’s appeal to foreign investors.

While other countries such as Australia, Canada, China, India, Japan and the US, as well as 12 of the 28 EU Member States[1] already have FDI screening mechanisms in place, it is the first time that such a mechanism is introduced at the EU level.

The proposal is a response to growing concerns in the EU – especially from France, Germany and Italy – that state-owned or state-controlled foreign investors, notably from China, are increasingly acquiring control over high-tech companies and critical infrastructure in Europe.

The EU framework will not impose an obligation on Member States to establish FDI screening mechanisms but rather sets out common rules for Member States that already have such mechanisms in place or that are willing to create them. In any case, the prohibition of FDIs on security or public order grounds will still be decided at the national level.

Formal approval of the proposed Regulation by the European Parliament and the Council is expected by March 2019, ahead of the upcoming EU elections in May 2019.


Continue Reading EU Framework for Screening of Foreign Direct Investments (Informally) Approved by the European Parliament and Council

With Halloween around the corner, the French Competition Authority (FCA) is revisiting chainsaw massacre: on October 24, 2018, it adopted a decision imposing a 7 million euros fine on chainsaw manufacturer Stihl for imposing a de facto ban on online sales to its distributors (see press release here). Even more importantly, contrasting with previous

Introduction

On 25 July 2018, Advocate General (AG) Kokott issued a non-binding Opinion in case C-265/17 P, Commission v United Parcel Service, advising the Court of Justice of the EU (CJEU) to dismiss the Commission’s appeal against the judgement of the General Court (GC) that annulled the Commission’s decision to block the proposed acquisition of TNT by UPS.

UPS notified the proposed acquisition of TNT for approximately EUR 5 billion on 15 June 2012. More than six months later, on 30 January 2013 the Commission blocked the proposed merger based on concerns that it would lead to a significant impediment of effective competition (SIEC) on the market for international intra-EEA express deliveries for small packages in 15 Member States.

On 7 March 2017 the GC issued a favourable judgement for UPS (case T-194/13, United Parcel Service v Commission). The Court found that the Commission breached UPS’s rights of defence by relying on the latest version of an economic analysis which was not shared with the merging parties before the merger was blocked. The Commission appealed the GC’s judgement on 16 May 2017.

In the meantime, TNT was acquired by FedEx for EUR 4 billion, in January 2016, in a deal that received unconditional approval by the Commission. While UPS may have lost the chance to consolidate its express deliveries business with TNT, AG Kokott’s favourable Opinion will arguably boosts UPS’s chances to win an action for damages for EUR 1.7 billion against the Commission filed by UPS in February 2018 (case T-834/17, United Parcel Service v Commission).

AG Kokott’s Opinion, which is largely in line with the GC’s judgment, provides an important reminder – especially to the Commission – that the rights of defence should be upheld without excuses, including in merger control proceedings.


Continue Reading AG Kokott on UPS/TNT: A ‘Textbook Example’ of How to Breach the Rights of Defence in Merger Control Proceedings

Today, in four separate decisions, the European Commission (EC) fined consumer electronics manufacturers Asus, Denon & Marantz, Philips and Pioneer €111 million for imposing fixed or minimum resale prices on their online retailers, as well as limiting the ability of retailers to sell cross-border (see press release here).

The topic of vertical restraints is admittedly not new – quite the opposite, in fact. However, today’s decisions are highly relevant for businesses engaging into e-commerce, as they are the first ones to take stock of the EC’s findings in the recent e-commerce sector inquiry, in particular as far as pricing algorithms and monitoring softwares are concerned.


Continue Reading Resale Price Maintenance, Pricing Algorithms and Monitoring Software: a Recipe for Disaster