March 2021

General antitrust

The Slovak Parliament adopts the Act on Protection of Competition which implements the provisions of the ECN+ Directive Free
Čechová & Partners (Bratislava)
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Čechová & Partners (Bratislava)
The implementation of the Directive 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (ECN+ Directive) is a topic that resonates in competition law circles all over the EU. In Slovakia, (...)

The US Senate introduces the Hawley Proposal for an important antitrust reform
White & Case (New York)
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White & Case (Washington)
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White & Case (Washington)
Sen. Hawley’s "Trust-Busting for the Twenty-First Century Act," introduced on April 12, 2021, takes aim at "Big Tech, Big Banks, Big Telecom, and Big Pharma" by proposing to curb mergers and acquisitions by large corporations and ease the way for prosecutors and private plaintiffs to prevail in (...)

The UK Competition Authority launches its Digital Markets Unit in order to boost and regulate online competition
United Kingdom’s Competition Authority - CMA (London)
New watchdog to boost online competition launches* A tough new regulator to help make sure tech giants such as Facebook and Google cannot exploit their market dominance to crowd out competition and stifle innovation online has launched. Digital Markets Unit begins work marking major milestone (...)

The UK Government launches the Digital Markets Unit as the first step towards an unashamedly pro-competition regime focused on the position of Tech giants
Hogan Lovells (London)
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Hogan Lovells (London)
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Hogan Lovells (London)
The UK Government has launched the much anticipated Digital Markets Unit (DMU) as a first step towards an “unashamedly pro-competition" regime focused on the position of “tech giants”. The DMU will, however, initially lack its own enforcement powers and there is still a lot to play for in terms (...)

The EU Commission issues a second competition comfort letter in support of pharmaceutical cooperation to combat COVID-19 Free
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On Monday 29 March 2021, the European Commission’s Directorate General for Competition (the Commission) published its second “new style” comfort letter. It was addressed to the organisers of an online “matchmaking event” that runs on 29 and 31 March 2021 and brings together more than 300 parties (...)

The Dusseldorf Court aspires to submit, once it is phrased, its questions to the EU Court of Justice about a social network data protection (Facebook)
Spieker & Jaeger (Dortmund)
Of Pricing Guns, Social Networks and GDPR: The Düsseldorf Higher Regional Courts submits Facebook Case to the CJEU* On 24 March 2021 the Higher Regional Court (‘Oberlandesgericht’) of Düsseldorf put yet another twist to the ‘Facebook Saga’. Although the formal written submission is not yet (...)

The Italian Competition Authority proposes pro-competitive legislative changes to the Government
Hogan Lovells (Milan)
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Hogan Lovells (Milan)
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Hogan Lovells (Milan)
The document provides a summary of the proposal for pro-competitive legislative changes submitted by the Italian Competition Authority to the Italian Government on 23 March 2021. The Italian Competition Authority identifies eight trajectories of possible reform: 1. Measures to encourage and (...)

The Belgian Competition Authority sets out its key policy priorities for 2021
Bird & Bird (Brussels)
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Bird & Bird (Brussels)
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Bird & Bird (Brussels)
On 10 March 2021, the Belgian Competition Authority (“BCA”) published its Priority Policy Note for the year ahead (available in French and Dutch). Impact of COVID-19 The BCA acknowledges that 2021 will be a year of recovery following the negative impact of the COVID-19 crisis on the Belgian (...)

The UK Competition Authority announces the first work plan for digital markets
Ashurst (London)
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Ashurst (London)
On 10 March 2021, the Digital Regulation Cooperation Forum ("DRCF") published its first annual plan of work for 2021/22. The plan of work establishes a road map for how the Competition and Markets Authority ("CMA"), the Office of Communications ("Ofcom") and the Information Commissioner’s (...)

The Australian Competition Authority accepts a court-enforceable undertaking from two credit card companies about concerns that one of them may have limited competition regarding debit card acceptance through its dealings with large merchants (Visa)
Ashurst (Sydney)
On 10 March 2021, Visa AP (Australia) Pty Ltd and Visa Worldwide Pte Limited (together, "Visa") entered into a court enforceable undertaking with the Australian Competition Consumer Commission ("ACCC"), seeking to address the ACCC’s concerns that Visa was leveraging its substantial market power (...)

The Dutch Competition Authority publishes its market study into the access for "Mobility as a Service" providers to public transportation services in the Netherlands
Bird & Bird (The Hague)
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Bird & Bird (Amsterdam)
On 8 March 2021, the Authority for Consumers & Markets (‘ACM’) published its market study into the access for Mobility as a Service (‘MaaS’) providers to public transportation services in the Netherlands. A MaaS platform integrates various methods of transport across different providers which (...)

The EU Commission selects 15 initiatives to help simplify and modernize EU law after the COVID-19 outbreak Free
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Brussels)
On 5 March 2021, the Commission announced the Fit for Future Platform’s selection of 15 initiatives aimed at simplifying EU law. Launched in May 2020, the Platform gathers a high-level expert group to assist the Commission with simplifying existing EU laws and reducing administrative burdens (...)

Anticompetitive practices

The French Competition Authority fines three sandwich manufacturers for creating a cartel (Roland Monterrat / La Toque Angevine / Daunat)
Bird & Bird (Paris)
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Bird & Bird (Paris)
The French Competition Authority (“FCA”) recently fined the three main French manufacturers of sandwiches for mass retail distribution for having implemented a volume and customer allocation plan over a six-year period and agreed on the price level to be offered to their customers (€24.5 million (...)

The Australian Federal Court approves a plan for an airline company to pay its fine in installments (Garuda)
Australian Competition and Consumer Commission (Canberra)
Garuda drops appeal, to pay $19m price fixing penalty in instalments* The Federal Court has approved a payment plan for airline PT Garuda Indonesia Ltd (Garuda) to pay a $19 million penalty the Court previously ordered relating to a long-running ACCC action against a global price fixing cartel (...)

The US DoJ charges two clinical directors for price-fixing for health care workers and obstructing the FTC’s investigation
US Department of Justice - Antitrust Division (Washington)
Second Individual Charged with Fixing Wages for Health Care Workers and Obstructing FTC Investigation* A federal grand jury in the Eastern District of Texas returned a superseding indictment charging two Texas men with conspiring to fix prices by lowering rates paid to certain health care (...)

The EU Court of Justice releases Advocate General Pitruzzella’s opinion stating that a national court can order a subsidiary company to pay compensation for the harm caused by the anticompetitive conduct of its parent company (Sumal / Mercedes Benz Trucks España)
European Court of Justice (Luxembourg)
According to Advocate General Pitruzzella, a national court can order a subsidiary company to pay compensation for the harm caused by the anticompetitive conduct of its parent company in a case where the Commission has imposed a fine solely on that parent company* For that to be the case, the (...)

The Russian Competition Authority initiates an investigation against a national internet-based service provider (Yandex)
Russian Federal Antimonopoly Service (Moscow)
The FAS Russia has initiated case against Yandex* The company has not fulfilled the warning of the FAS Russia on termination of discriminatory conditions in the market of web search On February 20, 2021 the FAS Russia issued a warning to Yandex LLC, according to which the organization had a (...)

The Danish Competition Authority and other competition authorities publish a joint memorandum on online pharmacy markets in the Nordics
Danish Competition and Consumer Authority (Copenhagen)
Nordic Competition Authorities: Online pharmacies can increase competition in the pharmacy sector* The Nordic Competition Authorities have 14.4.2021 published a joint memorandum on online pharmacy markets in the Nordics. The memorandum finds that the size and regulation of online pharmacy (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax)
Baker Botts (Washington)
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Baker Botts (Washington)
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Baker Botts (Washington)
On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s (“FTC” or “Commission”) ruling that the “reverse-payment” settlement agreement between Endo Pharmaceuticals Inc. (“Endo”) and Impax Laboratories LLC (“Impax”) violated federal antitrust laws. The (...)

The German Competition Authority ensures equal opportunities for online sales regarding a national equipment manufacturer’s distribution model (Liebherr)
German Competition Authority (Bonn)
Bundeskartellamt ensures equal opportunities for online sales in the new Liebherr distribution model* After an intervention by the Bundeskartellamt, Liebherr-Hausgeräte Vertriebs- und Service GmbH has agreed not to use certain clauses in its sales conditions which in the authority’s preliminary (...)

The US DoJ indicts a bidder for bid-rigging at an online auction for surplus Government equipment (GSA)
US Department of Justice - Antitrust Division (Washington)
Bidder Pleads Guilty to Riggings Bids at Online Auctions for Surplus Government Equipment* A Missouri man pleaded guilty today to rigging online bids submitted to the General Services Administration (GSA). According to court documents, Alan Gaines pleaded guilty to the one-count indictment (...)

The Austrian Competition Authority accepts commitments and closes its pharmaceutical pricing investigation on the sale of a brain tumor treatment (Merck Sharp / Dohme)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 2 April 2021, the Austrian competition authority accepted commitments and closed its case concerning pricing strategies alleged to unlawfully hinder entry by generic competitors. According to the authority’s press release, the investigated pricing strategy concerned the product Temodal (...)

The EU Court of Justice dismisses the appeals of several manufacturers of medicines involved in an agreement seeking to delay the marketing of the generic antidepressant citalopram (Lundbeck)
White & Case (Brussels)
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White & Case (Dusseldorf)
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White & Case (Brussels)
On 25 March 2021, the European Court of Justice ("ECJ") dismissed all the appeals against the European Commission’s decision to fine Lundbeck and several other companies for entering into anti-competitive patent settlement agreements. The judgments largely repeat the position taken by the ECJ (...)

The EU Court of Justice dismisses the appeals of several manufacturers of medicines against the General Court’s judgment upholding the Commission’s pay-for-delay infringement decision (Lundbeck)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (Brussels)
On 25 March 2021, the Court of Justice of the European Union (“CJEU”) dismissed the appeals by Lundbeck, Merck KGaA (and Generics UK), Arrow, Alpharma (and Xellia) and Ranbaxy, against the General Court’s (“GC”) judgment upholding the European Commission’s (“Commission”) 2013 pay-for-delay (...)

The EU Court of Justice provides guidance on the circumstances in which an infringement of competition law can be imputed to a parent company (Slovak Telekom) (Deutsche Telekom)
Ashurst (London)
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Ashurst (Brussels)
In its ruling in Deutsche Telekom v Commission (C-152/19 P), the European Court of Justice ("ECJ") provided guidance on the application of the Bronner case law to refusal to supply cases, as well as on the relevant facts, and on the circumstances in which an infringement of competition law can (...)

The EU Court of Justice dismisses the appeals of several pharmaceutical companies involved in an agreement seeking to delay the marketing of the generic antidepressant citalopram (Lundbeck)
European Court of Justice (Luxembourg)
The Court of Justice dismisses the appeals of a number of manufacturers of medicines involved in an agreement seeking to delay the marketing of the genericantidepressant citalopram* The European Commission had imposed on them fines of almost € 150 million From the late 1970’s, the Danish (...)

The EU Court of Justice dismisses the appeals of several manufacturers of medicines and upholds the Commission’s decision regarding a pay-for-delay infringement (Lundbeck)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
On 25 March 2021, the Court of Justice of the EU (“CJEU”) dismissed the appeals by Lundbeck and five producers of generic medicines against the General Court’s (GC) judgments that upheld the Commission’s decision and the fines it had imposed in its first pay-for-delay infringement decision in 2013. (...)

The EU Court of Justice dismisses appeals by several manufacturers of medicines regarding pay-for-delay patent settlement agreements (Lundbeck)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 25 March 2021, the Court of Justice of the European Union (CJEU) dismissed all appeals against the decision of the European Commission (the Commission) to fine Lundbeck and four generic pharmaceutical companies (Alpharma, Arrow, Merck, and Ranbaxy) for concluding “pay-for-delay” patent (...)

The EU Court of Justice confirms the pay-for-delay infringement decision in the pharmaceutical sector (Lundbeck)
Van Bael & Bellis (Brussels)
On 25 March 2021, the European Court of Justice (“ECJ”) dismissed all appeals against the 2016 rulings of the General Court which had upheld the European Commission’s (“Commission”) decision to fine Lundbeck and four generic pharmaceutical companies (Merck, Alpharma, Arrow and Ranbaxy) for (...)

The French Competition Authority closes an investigation into a national construction federation regarding a green label (FBTP 31)
French Competition Authority (Paris)
Ethibat label: the Autorité is closing an investigation into the French Construction and Public Works Federation of Haute-Garonne (FBTP 31)* The Autorité is closing an investigation into the French Construction and Public Works Federation of Haute-Garonne (FBTP 31) regarding the ETHIBAT label. (...)

The EU Court of Justice reduces fine imposed on a company in the steel abrasives cartel case (Pometon)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 18 March 2021, the European Court of Justice (“ECJ”) delivered its judgment in Pometon SpA v European Commission (Case C-440/19) in connection with the Steel Abrasives cartel case. In its judgment, the ECJ partially upheld the appeal in so far as it found that the General Court had breached (...)

The EU Commission publishes the results of the public consultation on the review of the motor vehicle block exemption regulation
Bird & Bird (Brussels)
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Bird & Bird (Brussels)
On 17 March 2021, the European Commission (“EC”) published a summary of the contributions on the review of the Motor Vehicle Block Exemption Regulation (“MVBER”) (“Consultation”). The MVBER is due to expire on 31 May 2023. The contributions will be used by the EC to determine whether it should let (...)

The Brazilian Competition Authority starts its first investigation involving the labor market in the healthcare industry
Caminati Bueno Advogados (São Paulo)
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Caminati Bueno Advogados (São Paulo)
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Caminati Bueno Advogados (São Paulo)
On March 17, 2021, CADE released a public order disclosing it is investigating potential anticompetitive practices performed into the labor market in Brazil , mirroring a worldwide trend that is already a strong policy in some seasoned jurisdictions. The proceeding at a glimpse As public (...)

The Danish High Court founds that the agreement fixing the price of subscriptions concluded by a natural gas company had an anticompetitive intent and breached the Competition Act (Hovedstadsregionens og Midt-Nords Naturgasselskab I/S)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
The Danish High Court has affirmed that Article 6(1) of the Danish Competition Act (corresponding to Article 101(1) TFEU), was infringed by a natural gas company, Hovedstadsregionens og Midt-Nords Naturgasselskab I/S (“HMN”), the trade association and two subcontractors, as these parties entered (...)

The UK Competition Authority disqualifies five directors in relation to two separate construction cartels (Campbell / Hudson / Sherling)
Ashurst (London)
The Competition and Markets Authority ("CMA") has disqualified five directors in relation to two separate construction cartels. Three of the directors were disqualified following an investigation by the CMA into two of the UK’s largest suppliers of rolled lead roofing materials, Associated Lead (...)

The UK Competition Authority secures five directors disqualifications across two investigations (Campbell / Hudson / Sherling)
Van Bael & Bellis (London)
On 10 March 2021 and 18 March 2021 respectively, the UK’s Competition and Markets Authority (“CMA”) announced that it had secured the disqualification of five company directors, after finding that they had infringed competition law by forming cartels in the construction industry, following two (...)

The EU Commission fines €7.8 billion six video games manufacturers for geo-blocking practices (Valve / Bandai Namco / Capcom / Focus Home / Koch Media / ZeniMax)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
Over the course of less than two months, in late 2020 and early 2021, the Court of Justice of the European Union (CJEU) and the European Commission (Commission) issued two decisions with diametrically opposed effects on the licensing and business model of copyrighted content across the EEA. (...)

Unilateral Practices

The UK Competition Appeal Tribunal increases the Competition Authority’s fine imposed on a musical instrument firm for abuse of dominant position (Roland)
United Kingdom’s Competition Authority - CMA (London)
CAT increases fine after musical instrument firm breaks settlement bargain* The CMA has welcomed a Competition Appeal Tribunal judgment dismissing an appeal against a fine it imposed, instead increasing the fine from £4m to £5m. In June 2020, the Competition and Markets Authority (CMA) fined (...)

The Russian Supreme Court confirms the Competition Authority’s decision to sanction a national railway company for abuse of dominant position (Russian Railways)
Russian Federal Antimonopoly Service (Moscow)
The cassation supported decision of the FAS russia in relation to russian railways* The company violated antimonopoly legislation and abused its dominant position The Arbitration Court of the Moscow District supported the position of the FAS Russia in relation to Russian Railways JSC. As the (...)

The Chinese Competition Authority fines $2.8 billion an online market platform for abusing its dominant position (Alibaba)
University of Macau - Faculty of Law (Macau)
China’s antitrust penalty for Alibaba: reading between the lines* On 10 April 2021, the State Administration for Market Regulation (SAMR), China’s competition authority responsible for the enforcement of the Anti-Monopoly Law (AML), announced the imposition of CNY 18 billion fine on Alibaba for (...)

The EU Commission opens a formal investigation to assess whether a power exchange company abused its dominant position (EPEX Spot)
DG COMP (Brussels)
Antitrust: Commission opens investigation into possible anticompetitive behaviour by the power exchange EPEX Spot* The European Commission has opened a formal investigation to assess whether the power exchange EPEX Spot SE (‘EPEX Spot’) has been taking advantage of its dominant position to (...)

The Italian Competition Authority accepts a company’s commitments in abuse of dominance probe in the market for natural gas distribution (Italgas)
Ashurst (Milan)
The Italian Competition Authority ("ICA") has recently closed with commitments an investigation against Italgas for an alleged abuse of dominance consisting of the refusal to supply essential information to the Venice municipality which was launching a tender concerning gas distribution (...)

The German Competition Authority accepts a postal service company’s commitments to end its discount system for the dispatch of newspapers and magazines (Deutsche Post)
Ashurst (Frankfurt)
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Ashurst (Munich)
On 26 February 2021, the German Federal Cartel Office ("FCO") closed its six-year investigation into Deutsche Post AG ("DPAG") after securing commitments in connection with practices relating to the dispatch of newspapers and magazines. The FCO suspected that DPAG had abused its dominant (...)

Mergers

The Slovak Parliament adopts the Act on Protection of Competition which contains rules on merger control Free
Čechová & Partners (Bratislava)
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Čechová & Partners (Bratislava)
The new Slovak Competition Act will come into force on 1 June 2021. While the primary purpose of adoption of the new legislation is the transposition of Directive 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper (...)

The US Surface Transportation Board sets aside the current and more stringent regulations applicable to Class I mergers and determines that a merger proposal can proceed under the older rules governing such mergers (CP / KCS)
Commonwealth Secretariat (London)
If the proposed corporate-friendly merger announced on 21 March 2021 between Calgary-based Canadian Pacific Railway Ltd. (‘CP’) and Kansas City Southern Railway Company (‘KCS’) proceeds, it will be examined under a 2001 waiver granted by the United States Surface Transportation Board (‘STB’)[[ (...)

The UK, German and Australian Competition Authorities agree on a joint statement on merger control
German Competition Authority (Bonn)
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Australian Competition and Consumer Commission (Canberra)
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United Kingdom’s Competition Authority - CMA (London)
Competition Agencies from Germany, the UK and Australia agree on Joint Merger Statement* Today, the Bundeskartellamt, the UK’s Competition and Markets Authority (CMA) and the Australian Competition and Consumer Commission (ACCC) have agreed on a joint statement on merger control. The joint (...)

The Australian Competition Authority clears the merger between two software companies (MYOB / GreatSoft)
Australian Competition and Consumer Commission (Canberra)
MYOB’s acquisition of GreatSoft not opposed* The ACCC will not oppose MYOB Invest Co Pty Ltd’s acquisition of GreatSoft Pty Ltd, finding the transaction is not likely to substantially lessen competition. MYOB and GreatSoft both supply practice management software to medium-to-large accounting (...)

The UK Competition Authority finds that a merger between two investment platforms would raise significant competition concerns following its re-examination (FNZ / GBST)
United Kingdom’s Competition Authority - CMA (London)
Competition concerns remain about FNZ’s purchase of GBST* The CMA has provisionally found that a deal between FNZ and GBST would raise significant competition concerns, following its re-examination of available evidence. The Competition and Markets Authority (CMA) reassessed the deal, (...)

The German Competition Authority clears the merger between two book retailers (Thalia / Lehmanns)
German Competition Authority (Bonn)
Bundeskartellamt clears takeover of Lehmanns by Thalia* The Bundeskartellamt has today cleared the proposed acquisition of the specialist literature provider Lehmanns by the book retailer Thalia. With over 380 bookshops, Thalia is by far the largest bookstore chain in Germany. Lehmanns is (...)

The French Competition Authority clears a merger between two national slaughterhouses subject to conditions (Ronsard / LDC)
French Competition Authority (Paris)
The Autorité de la concurrence clears, subject to conditions, the acquisition of the Ronsard Group by the LDC Group* A number of slaughterhouses will have to be divested to maintain sufficient competition for poultry farmers. On 8 January 2021, the LDC Group notified the Autorité of its plan to (...)

The UK Competition Authority provisionally clears merger between two telecommunications companies (Virgin / O2)
United Kingdom’s Competition Authority - CMA (London)
CMA provisionally clears merger of Virgin and O2* The CMA has provisionally cleared the proposed merger of Virgin Media and Virgin Mobile with O2. Both Virgin and O2 provide certain wholesale services to other mobile network operators in the UK, as well as retail services to consumers. The (...)

The EU Commission approves the merger between two waste management companies subject to conditions (Suez / Schwarz)
DG COMP (Brussels)
Mergers: Commission approves acquisition of certain Suez waste management companies by the Schwarz Group, subject to conditions* The European Commission has approved, under the EU Merger Regulation, the acquisition of certain Suez waste management companies in Germany, Luxembourg, the (...)

The EU Commission opens an in-depth investigation into a proposed merger between two-panel manufacturers (Kingspan / Trimo)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into proposed acquisition of Trimo by Kingspan Page contents* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Trimo, arhitekturne rešitve, d.o.o. (‘Trimo’) by Kingspan Group plc (‘Kingspan’), under (...)

The Mexican Competition Authority updates its merger guidelines which clarify notification requirements for joint ventures and the failing firm defense
Jones Day (Mexico)
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Jones Day (Brussels)
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Jones Day (Washington DC)
Newly revised merger control guidelines ("Guidelines") from the Comisión Federal de Competencia ("COFECE"), Mexico’s competition law authority, clarify when parties to joint ventures or collaborations ("JVs") must report those transactions to COFECE. The Guidelines provide much needed guidance (...)

The EU Commission acknowledges two airline companies’ announcement to withdraw from the proposed merger (Air Canada / Transat)
DG COMP (Brussels)
Statement by Executive Vice-President Vestager on announcement by Air Canada and Transat to withdraw from proposed merger* The European Commission takes note of Air Canada and Transat’s announcement that they have decided to terminate the proposed merger agreement according to which Air Canada (...)

The UK Takeover Panel publishes a response statement explaining the changes that are going to be made to the Takeover Code
Hogan Lovells (London)
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Hogan Lovells (London)
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Hogan Lovells (London)
The Takeover Panel has just published its response statement (2020/1) making important changes to the Takeover Code regarding offer conditionality and timetable. They take effect on 5 July 2021 and will apply in relation to firm offers announced on or after that date. We set out our initial (...)

The US DoJ requires a waste management company to divest its assets to proceed with the acquisition of its competitor (Republic / Santek)
US Department of Justice - Antitrust Division (Washington)
Justice Department Requires Republic Services to Divest Assets to Proceed with Santek Acquisition* Divestiture Will Preserve Competition in Markets for Small Container Commercial Waste Collection and Municipal Solid Waste Disposal in Six Local Markets in Five States The Department of Justice (...)

The UK Takeover Panel publishes a response statement following its consultation on the changes that are going to be made to the Takeover Code
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
Overview The Takeover Panel has published a response statement, RS 2020/1, following its consultation (PCP 2020/1) on the Takeover Code provisions relating to conditions to an offer, particularly those relating to regulatory / merger control clearance, and the offer timetable. The changes (...)

The US FTC challenges the merger between a pharmaceutical company and a cancer detection test manufacturer (Grail / Illumina)
US Federal Trade Commission (FTC) (Washington)
FTC Challenges Illumina’s Proposed Acquisition of Cancer Detection Test Maker Grail* Agency alleges vertical merger would harm competition in the U.S. market for life-saving Multi-Cancer Early Detection tests The Federal Trade Commission has filed an administrative complaint (a public version (...)

The EU Commission launches a major merger control reform
Norton Rose Fulbright (Brussels)
EU Commission Launches Major Merger Control Reform* On March 26, the EU Commission announced a major reform of EU Merger Regulation (EUMR) procedures, arguably the most significant since the 2004 adoption of the current EUMR. The current EUMR expanded EU jurisdiction by broadening the EUMR (...)

The EU Commission issues guidance on the application of the referral mechanism set out in article 22 of the Merger Regulation expanding its antitrust reviews to non-reportable transactions
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Brussels)
In Short The Situation: According to the European Commission ("EC"), an increasing number of competitively significant transactions have evaded merger notification because one or both of the transacting parties (but typically a small, high value target) did not meet EC or any Member State (...)

The EU Commission publishes guidance on its broadened Member State referral system
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
The European Commission (EC) has published guidance on its new policy to encourage and accept referral requests from Member States under Article 22 of the EU Merger Regulation (EUMR) even where transactions do not meet the national merger control thresholds of the referring Member States (see (...)

The EU Commission announces evaluation results and follow-up measures on jurisdictional and procedural aspects of EU merger control
DG COMP (Brussels)
Mergers: Commission announces evaluation results and follow-up measures on jurisdictional and procedural aspects of EU merger control* The European Commission has published today a Staff Working Document that summarises the findings of the evaluation of procedural and jurisdictional aspects of (...)

The EU Commission revamps its approach to Member State referrals as set out in article 22 of the Merger Regulation
Hogan Lovells (Munich/Frankfurt)
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Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
On 26 March 2021, the European Commission (“Commission”) has, without any public consultation, published its new guidance on accepting merger referrals from Member States under Article 22 of the European Merger Regulation (“EUMR”), which it had announced last year. This document (the “Guidance”) (...)

The EU Commission publishes guidance on article 22 referrals for transactions falling below national thresholds
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Dusseldorf)
On 26 March 2021 the EU Commission (Commission) published revised guidance on the referral mechanism set out in Article 22 of the EU Merger Regulation (EUMR), under which the Commission will now accept referrals from Member States for deals that fall below the domestic jurisdictional thresholds (...)

The EU Commission publishes guidance and expands its jurisdiction by capturing transactions below the jurisdictional thresholds of national and EU merger control regimes
Orrick, Herrington & Sutcliffe (London)
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Orrick, Herrington & Sutcliffe (London)
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Orrick, Herrington & Sutcliffe (London)
The European Commission (“Commission”) is expanding its jurisdiction over transactions by encouraging national competition authorities (“NCAs”) of the EU Member States to ‘refer’ certain transactions to it that fall below the thresholds for mandatory notification at the EU and the national level. On (...)

The EU Commission publishes guidance on the application of the referral mechanism set out in article 22 of the merger regulation to certain categories of cases
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
The European Commission wants to be able to block or conditionally approve transactions, mainly in the digital economy and in the pharmaceutical sector, even when the thresholds for notification are not met. In publishing its new Article 22 Guidance, the Commission has significantly expanded (...)

The EU Commission provides guidance regarding its policy change to article 22 of the EU Merger Regulation
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
On 26 March 2021, the European Commission (“Commission”) published a Staff Working Paper summarising the findings of its evaluation of procedural and jurisdictional aspects of EU merger control (the “Evaluation”), along with a communication providing guidance regarding its change in approach to the (...)

The UK Competition Authority publishes its revised Merger Assessment Guidelines along with a quick guide complementing the revision of its Guidance on jurisdiction and procedure
Bird & Bird (London)
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Bird & Bird (London)
In March 2021, the Competition & Markets Authority (CMA) published its revised Merger Assessment Guidelines (MAGs) along with a Quick Guide, complementing the revision of its Guidance on jurisdiction and procedure, which was published in December 2020. The updated MAGs underpin the CMA’s (...)

The UK Competition Authority publishes the revised Merger Assessment Guidelines
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The U.K.’s Competition & Markets Authority (CMA) has released new merger assessment guidelines that confirm the U.K. regulator’s intensified approach to merger control. The guidelines largely codify the CMA’s recent output, which includes record-high numbers of prohibitions and deal (...)

The UK Competition Authority publishes its revised Merger Assessment Guidelines
Bird & Bird (London)
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Bird & Bird (London)
In March 2021, the Competition & Markets Authority (CMA) published its revised Merger Assessment Guidelines (MAGs) along with a Quick Guide, complementing the revision of its Guidance on jurisdiction and procedure, which was published in December 2020. The updated MAGs underpin the CMA’s (...)

The EU Commission and other Competition Authorities announce the formation of a multilateral pharma merger working group
Van Bael & Bellis (Brussels)
On 16 March 2021, the European Commission, the UK Competition and Markets Authority (“CMA”), the Canadian Competition Authority and the US competition authorities announced the formation of a trans-Atlantic working group to exchange best practices on pharmaceutical mergers. Pharmaceutical mergers (...)

The French Administrative Supreme Court rejects an appeal by an employee representative body concerning a merger approval (Mondadori)
Ashurst (Paris)
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Ashurst (Paris)
On 9 March 2021, the French Administrative Supreme Court (Conseil d’Etat) rejected an appeal by Mondadori’s social and economic committee ("SEC") in relation to the French Competition Authority’s ("FCA") decision to approve Reworld Media’s takeover of Mondadori France. The French Administrative (...)

The Turkish Competition Authority publishes its merger & acquisitions overview report regarding its activities in terms of merger control in 2020
ACTECON (Istanbul)
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ACTECON (Istanbul)
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ACTECON (Istanbul)
The Turkish Competition Authority’s (“TCA“) Mergers and Acquisitions Overview Report for 2020 (“Report“) has been published at the TCA’s official website on March 5, 2021. The Report provides an overview of the TCA’s activities in terms of merger control in 2020 and includes statistical information on (...)

State Aid

The EU Commission adopts revised regional aid guidelines
DG COMP (Brussels)
State aid: Commission adopts revised Regional Aid Guidelines* The European Commission has adopted revised EU guidelines on regional State aid (the “Regional Aid Guidelines”), setting out the rules under which Member States can grant State aid to companies to support the economic development of (...)

The EFTA Surveillance Authority approves Norwegian umbrella scheme to support businesses in the context of the COVID-19 pandemic Free
EFTA Surveillance Authority (Brussels)
COVID-19 pandemic: ESA approves Norwegian umbrella scheme to support businesses* The EFTA Surveillance Authority (ESA) has today approved a Norwegian umbrella scheme allowing municipalities to support local businesses that are suffering due to the ongoing COVID-19 pandemic. Preventive (...)

The EU Commission invites interested parties to provide comments on a proposed revision of State aid Framework for research, development and innovation
DG COMP (Brussels)
State aid: Commission invites interested parties to provide comments on proposed revision of State aid Framework for research, development and innovation* The European Commission has launched today a public consultation inviting all interested parties to comment on a proposed targeted revision (...)

The EU Commission approves €1.74 billion Danish scheme to support mink farmers and related businesses in the context of the COVID-19 pandemic Free
DG COMP (Brussels)
State aid: Commission approves €1.74 billion Danish scheme to support mink farmers and related businesses in context of coronavirus outbreak* The European Commission has approved under EU State aid rules, an approximately €1.74 billion (DKK 13 billion) Danish scheme to compensate mink farmers (...)

The EU Commission approves up to €4 billion French measure to recapitalise a national airline company (Air France) Free
DG COMP (Brussels)
State aid: Commission approves up to €4 billion French measure to recapitalise Air France* The European Commission has approved French plans to grant up to €4 billion for the recapitalisation of Air France through its Holding company. The measure was approved under the State aid Temporary (...)

The EU Commission approves €400 million Dutch loan scheme to support companies providing package travel and linked travel arrangements in the context of the COVID-19 pandemic Free
DG COMP (Brussels)
State aid: Commission approves €400 million Dutch loan scheme to support companies providing package travel and linked travel arrangements in context of coronavirus outbreak* The European Commission has approved a €400 million Dutch loan scheme to support companies providing package travel and (...)

The EU Commission approves amended Member State measures under the Temporary Framework to support the economy after the COVID-19 outbreak Free
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Brussels)
Since the onset of the coronavirus outbreak, the European Commission has adopted a significant number of State aid measures under Article 107(2)b, Article 107(3)b and under the Temporary Framework. The most recent measures adopted to support the economy and companies affected by coronavirus (...)

The EU Court of Justice confirms shortcomings of the Commission’s State aid investigation into progressive turnover-based taxes adopted by Hungary and Poland
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 16 March 2021, the Grand Chamber of the European Court of Justice (“ECJ”) rejected the appeals brought by the Commission against the General Court’s (“GC)” judgments concerning progressive turnover-based taxes adopted by Hungary (Case C-596/19 P) and Poland (Case C-562/19 P). The national (...)

The Serbian Government publishes rules on regional State aid for further alignment of the legislation with the EU’s acquis
BDK (Podgorica)
The Government of Serbia adopted on 11 March 2021 two new bylaws under the State Aid Control Act (Zakon o kontroli državne pomoći, Official Gazette of the Republic of Serbia no. 73/2019): the Regulation on Conditions and Criteria for Compliance of Regional State Aid (Uredba o uslovima i (...)

The EU Court of Justice rules that a football club received illegal State aid and sets aside the judgment of the General Court (Fùtbol Club Barcelona)
Ashurst (Brussels)
On 4 March 2021, the European Court of Justice ("ECJ") handed down its much awaited judgment in the Fùtbol Club Barcelona ("FCB") case. It set aside the judgment of the General Court. As a result, the European Commission’s decision classifying as State aid a tax scheme that was available to four (...)

The EU Court of Justice further relaxes the standards of review of “aid schemes” and annuls the General Court’s judgment on Spanish football clubs (Fútbol Club Barcelona)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 4 March 2021, the European Court of Justice (“ECJ”) delivered another interesting judgment (Case C-362/19 P) in the “Spanish football club saga”, which set aside the General Court’s (“GC”) judgment of 26 February 2019, Fútbol Club Barcelona v Commission (Case T-865/16, the “judgment under appeal”), (...)

The EU Court of Justice decides that the various components of a tax system form an indivisible whole and the effect they produce differ (Fútbol Club Barcelona)
College of Europe (Bruges)
“Global” Assessment of Tax Schemes* It is incumbent on the Commission to carry out a global assessment of tax schemes. But it must take into account only those provisions of schemes that apply ex ante and do not depend on the circumstances of individual tax payers. Only when aid has to be (...)

The EU Court of Justice confirms that support measures adopted by an Italian bank consortium did not constitute State aid (Banca Popolare di Bari)
Ashurst (Brussels)
On 2 March 2021, the European Court of Justice ("ECJ") dismissed in its entirety the European Commission’s appeal against the General Court’s judgment regarding financial support adopted by an Italian consortium of banks for the benefit of one of its members. The General Court found correctly (...)

The EU Court of Justice confirms that Italian deposit guarantee scheme intervention in support of a bank did not constitute State aid (Banca Popolare di Bari)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Rome)
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Link Campus University (Rome)
On March 2, 2021, in dismissing the appeal brought by the European Commission against the judgment of the EU General Court in the Tercas case, the EU Court of Justice issued a landmark ruling on the standard of proof for the imputability to the State of support measures granted by private (...)

Procedures

The US Court of Appeals for the Ninth Circuit clarifies class certification standards in an antitrust appeal (Olean Wholesale Grocery / Bumble Bee Foods)
Jones Day (San Francisco)
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Jones Day (San Francisco)
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Jones Day (Irvine)
The Ninth Circuit approved use of statistical analysis that relies on averaging but reversed class certification because the district court failed to resolve whether more than a de minimis number of putative class members were injured. On April 6, 2021, in Olean Wholesale Grocery Coop. v. (...)

The EU Court of Justice issues its first ruling on the use of so-called ’hybrid settlement’ procedures in cases in which settlement decisions do not cover all parties to an infringement (Pometon)
Ashurst (Brussels)
In its ruling in Pometon (C-440/19 P), the European Court of Justice ("ECJ") issued its first ruling on the use of so-called ’hybrid settlement’ procedures in cases in which settlement decisions do not cover all parties to an infringement. What you need to know – key takeaways The ECJ has (...)

The Italian Highest Administrative Court refers a case involving an anti-competitive arrangement concerning the sale of eye medication for the second time to the EU Court of Justice (Avastin / Lucentis)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
1. Background of Case On 18 March 2021, the Italian highest administrative court, the Consiglio di Stato (the CS), decided to refer a case under its review for the second time to the Court of Justice of the European Union (CJEU) pursuant to Article 267 TFEU. The case finds its origin in a (...)

The Turkish Competition Authority introduces a settlement mechanism under national competition law
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
In an effort to take one step further in harmonizing the Turkish Competition Law with the EU legislation, the Turkish Competition Authority (“Authority”) has recently introduced the settlement mechanism under Article 43 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) and the (...)

The Italian Highest Administrative Court refers the dispute of a pharmaceutical company to the EU Court of justice for the second time (Avastin / Lucentis)
Bird & Bird (Rome)
On 18 March 2021, the Italian Supreme Administrative Court (“Consiglio di Stato” or “CdS”) wrote a new episode in the long-lasting Hoffman La Roche - Novartis saga related to the Avastin drug, which may have serious repercussions on the relationship between EU and national judges. To recall, in (...)

The Turkish High State Court upholds the Competition Authority’s non-fining decision by implementing the non bis in idem principle (Mey İçki / Antalya Alkollü / Efe Alkollü)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Introduction In April 2016, the Turkish Competition Board (the “Board”) launched an investigation against Mey İçki San. ve Tic. A.Ş. (“Mey İçki”), a subsidiary of Diageo plc. The investigation aimed to explore the validity of the allegations regarding Mey İçki`s abuse of dominance in the Turkish (...)

The UK Court of Appeal confirms that collective proceedings’ funding arrangements are not damages-based agreements (DAF Trucks)
Ashurst (London)
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Ashurst (London)
On 5 March 2021, the Court of Appeal upheld a decision of the Competition Appeal Tribunal ("CAT") that the funding arrangements in place in two collective proceedings arising from the Trucks cartel are not damages-based agreements ("DBAs"). What you need to know - key takeaways The decision (...)

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