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.

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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.

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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.

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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.

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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.


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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.

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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.


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