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Since launching its review programme in September 2019, the Commission has been working to update its Horizontal Guidelines and two sets of block exemptions, R&D and Specialisation, both of which are due to expire on December 31, 2022. The Commission consulted widely (to which we contributed) and has just published proposed drafts of each in a final round of consultations, which will expire on April 26, 2022. Alongside this programme, the Commission is also updating the Verticals Block Exemption and the Market Definition Guidelines, for which further drafts are expected in the coming months.
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Continue Reading Commission Moves Closer to Finalizing New Horizontal Guidelines and R&D and Specialization Block Exemptions

Gun-jumping can occur when parties fail to fulfil the two obligations laid down by the European Merger Regulation No 139/2004 (EUMR). Article 4(1) of the EUMR sets out the obligation to notify the European Commission (Commission) of a concentration with an EU dimension before implementation. Article 7(1) sets out the obligation to stand still until the Commission declares such a concentration compatible with the internal market.

But would it be possible for parties to breach both obligations concurrently regarding the same transaction and thus to be fined doubly? The General Court answered in the affirmative in one of the most anticipated anti-gun-jumping cases.…

Continue Reading Gun Jumping: The General Court’s Ruling

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

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.
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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,…

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.
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Continue Reading CMA Guidance on its Approach to Merger Assessments during the COVID-19 Pandemic

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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Continue Reading Changes to Merger Rules

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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Continue Reading Collaboration Between Competitors in Times of Crisis

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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Continue Reading Measures to Protect Against Predatory Conduct