Privacy and antitrust

Anticompetitive practices

The Indian Competition Authority publishes draft amendments to the confidentiality regime and invites public comments
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (Mumbai)
The CCI announced in April that it was in the process of reviewing and revising the confidentiality regime, based on its enforcement experience over the last 10 years. It published draft amendments to the relevant provisions in the General Regulations, and has invited public comments on these (...)

The Indian Competition Authority publishes the key findings of its market study on the telecom sector
Khaitan (Mumbai)
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Khaitan (Mumbai)
Tring Tring! CCI calls in the market study on Indian telecom sector* On 22 January 2021, the Competition Commission of India (CCI) published its market study on the Indian telecom sector (Market Study). Initiated by the CCI in January 2020 as part of its advocacy measures, the Market Study (...)

The EU Commission publishes the digital services act intended to modernize the legal framework for digital services in the European Union
Morgan Lewis (New York)
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Morgan Lewis (London)
The European Commission (Commission) published the first draft of the Digital Services Act (DSA) and the Digital Markets Act (DMA) on December 15 2020. Morgan Lewis previously reported on the anticipated DSA. The DSA and DMA are intended to modernize the legal framework for digital services in (...)

The EU Commission proposes regulation on a single market for digital services
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 15 December 2020, the European Commission (the “Commission”) presented a legislative package consisting of a proposed Regulation on a Single Market for Digital Services (“Digital Services Act” or “DSA”), which creates new rules applicable to providers of online intermediary services, as well as a (...)

The EU Commission publishes new obligations and sanctions for digital gatekeepers
Orrick, Herrington & Sutcliffe (Paris)
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Orrick, Herrington & Sutcliffe (Brussels)
The debate about competition issues and unfair practices specific to online platforms and the appropriate tools to tackle them was taken a step further by the European Commission (‘Commission’), which presented two legislative proposals on 15 December 2020: The Digital Services Act (‘DSA’) and (...)

The EU Commission unveils sweeping proposals to regulate the digital sector
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Brussels)
In Short The Development: The European Commission ("EC") recently released two long-awaited legislative proposals, the Digital Services Act ("DSA") and Digital Markets Act ("DMA"), that would significantly increase the EC’s regulatory oversight of online platform companies (previewed in our (...)

The EU Commission issues the proposed digital markets act aimed to complement antitrust intervention in digital markets with ex-ante regulation in the form of a set of obligations that platforms identified as “gatekeepers” should abide by
CRA International (London)
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Yale University - School of Management (New Haven)
The European Commission Digital Markets Act: A translation* The European Commission has finally issued the proposed Digital Markets Act, its bid to complement antitrust intervention in digital markets with ex-ante regulation in the form of a set of obligations that platforms identified as (...)

The EU Commission publishes a draft regulation aiming the imposition of ex-ante obligations on providers of certain pre-defined core platform services that qualify as gatekeepers
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)
1. Introduction The draft Regulation of the European Parliament and of the Council on Contestable and Fair Markets in the Digital Sector (Digital Markets Act) (“DMA Proposal”) was announced by the European Commission (“Commission”) on December 15, 2020. The DMA Proposal envisages the imposition of (...)

The EU Commission publishes proposals imposing obligations on providers of digital services and augmenting enforcement powers
Covington & Burling (Brussels)
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Geradin Partners (Brussels)
Yesterday, the European Commission published its proposals for the Digital Markets Act (“DMA Proposal”) and Digital Services Act (“DSA Proposal”), proposing new regulation of “intermediary services” and “designated gatekeepers”. The proposals would impose new obligations on providers of digital (...)

The Dutch Competition Authority calls big tech company to inform consumers about the data use of apps (Apple)
Netherlands Authority for Consumers & Markets (The Hague)
Apple informs consumers about the data use of apps following call from regulators worldwide* Apple will indicate in its App Store what personal data each app uses. Starting today, app providers are required to include such information on their products’ pages in app stores. This information (...)

The UK Government announces a new competition regime for tech giants with more data control for consumers, more online promotion opportunities for small businesses, more balance for publishers, and a new Digital Markets Unit to oversee it all
United Kingdom’s Competition Authority - CMA (London)
New competition regime for tech giants to give consumers more choice and control over their data, and ensure businesses are fairly treated* A dedicated Digital Markets Unit will be set up to introduce and enforce a new code to govern the behaviour of platforms that currently dominate the (...)

The UK Government announces the establishment of a digital markets unit within the CMA to regulate tech companies from April 2021
Van Bael & Bellis (Brussels)
On 27 November 2020, the UK Department for Business, Energy & Industrial Strategy and the Department for Digital, Culture, Media & Sport announced the creation of a Digital Markets Unit within the Competition and Markets Authority (“CMA”) which, from April 2021, will introduce and enforce (...)

The Chinese SAMR issues antitrust guidelines for the platform economic industry
King & Wood Mallesons (Beijing)
10 Highlights of the Antitrust Guidelines for Platform Economy* On 10 November, the Anti-Monopoly Bureau of the State Administration for Market Regulation (“SAMR”) issued the Antitrust Guidelines for the Platform Economic Industry (draft for comments) (“Platform Guidelines”). [1] The release of (...)

The Australian Competition Authority issues interim report on its first inquiry of digital services platforms which finds a surge in online messaging use during the COVID-19 pandemic as big digital platforms continue to expand
Australian Competition and Consumer Commission (Canberra)
Surge in online messaging use as big digital platforms continue to expand* Australians are increasingly turning to online private messaging services to keep in touch with each other, and are overwhelmingly choosing services provided by Facebook and Apple. The ACCC’s first Digital Platform (...)

The Turkish Competition Authority publishes guidelines on the examination of digital data during on-site inspections
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)
(1) Introduction The Turkish Competition Authority (“ TCA ”) recently published its Guidelines on Examination of Digital Data during On-site Inspections (“ Guidelines ”), which set forth the general principles with respect to the examination, processing and storage of data and documents held in the (...)

The Turkish Competition Authority publishes guidelines on the examination of digital data during on-site inspections
Erdem & Erdem (Istanbul)
Introduction Article 15 of Law on the Protection of Competition numbered 4054 (“Law”) authorizes the Competition Authority (“Authority”) to conduct on-site inspections at the undertakings’ premises if deemed necessary in carrying out the duties assigned to it by the Law. Pursuant to the relevant (...)

The EU General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by several French undertakings in the distribution sector (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
General Court of the European Union (Luxembourg)
The General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by a number of French undertakings in the distribution sector* The Commission has failed to show that it had sufficiently strong evidence to suspect exchanges of information (...)

The EU General Court annuls partially the Commission’s decision ordering dawn raids on the premises of French supermarkets and their joint purchasing alliance (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
On October 5, 2020, the General Court of the European Union partially annulled decisions of the European Commission ordering dawn raids on the premises of French supermarkets Casino and Intermarché and their joint purchasing alliance INCA Auchats (see cases T-249/17, T-254/17 and T-255/17). The (...)

The Australian Competition Authority amends its consumer data right rules to permit accredited intermediaries
Australian Competition and Consumer Commission (Canberra)
Consumer Data Right Rules amended to include intermediaries* The ACCC has amended the Consumer Data Right Rules to permit accredited intermediaries to collect data on behalf of third party data recipients, with consumer consent. These amended rules mean accredited businesses can now ask other (...)

The Austrian Competition Authority gains the right of action in relation to any non-compliance by providers of online intermediation services or by providers of online search engines with the relevant requirements laid down in the P2B Regulation
Austrian Competition Authority (Vienna)
AFCA granted right of action in relation to P2B Regulation on promoting fairness and transparency for business users of online intermediation services* The EU Regulation on platform-to-business relations (P2B Regulation), which promotes fairness and transparency for business users of online (...)

The French Competition Authority issues an opinion on the competitive bidding process of middle and outer rings of Greater Paris bus lines (Île-de-France Mobilités)
French Competition Authority (Paris)
Opening up bus networks in Ile-de-France to competition: the Autorité issues an opinion to Île-de-France Mobilités on the competitive bidding process of middle and outer rings of Greater Paris bus lines* Background Following a referral by the Île-de-France Transport Trade Association, also known (...)

The New Zealand Competition Authority warns mobile operators that they should improve consumer choice through easier comparisons (Spark / Vodafone / 2degrees)
New Zealand Commerce Commission (Wellington)
Mobile operators should improve consumer choice through easier comparisons* The Commerce Commission has told New Zealand’s three mobile network operators that they should provide more meaningful comparison information and guard against overspending by mobile phone consumers. Mobile operators (...)

The Singapore Competition Authority publishes its findings and recommendations from its market study on e-commerce platforms
Ashurst (Sydney)
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Ashurst (Singapore)
On 10 September 2020, the Competition and Consumer Commission of Singapore ("CCCS") published its findings and recommendations from its market study on e-commerce platforms. While the market study did not identify any significant competition concerns in the sector, the CCCS has concurrently (...)

The Singapore Competition Authority publishes a market study on e-commerce platforms
Bird & Bird (Singapore)
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Bird & Bird (Singapore)
Digital platforms have experienced significant growth and popularity in Singapore in recent years and COVID-19 has accelerated its proliferation. The rapid pace of innovation and broad adoption of these platforms have raised significant competition concerns both local and abroad. In September (...)

The EU Commission publishes a review of the vertical block exemption regulation which addresses the questions of big data and access to data
Bird & Bird (Budapest)
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Bird & Bird (Budapest)
Issues around Big Data and access to data as an essential input are rapidly gaining importance in vertical relationships. This was made clear in the Commission’s recently published evaluation of stakeholder input in the context of the review of the VBER. In the past, the Hungarian Competition (...)

The Australian Federal Court imposes a $2.9 million civil penalty to a health business for the sharing of patient personal information to private health insurance brokers and for publishing misleading patient reviews and ratings (HealthEngine)
Ashurst (Sydney)
On 20 August 2020, HealthEngine Pty Ltd ("HealthEngine") was ordered by the Federal Court of Australia to pay a AUD 2.9 million civil penalty for contraventions of the Australian Consumer Law ("ACL") between 30 April 2014 and 30 June 2018 related to reviews, ratings, referrals and sharing (...)

The EU Commission launches a sector inquiry into the consumer-related devices and services that are connected through a network and can be controlled wirelessly (IoT)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (London)
On July 16, 2020, the European Commission (“Commission”) announced that it has launched an antitrust sector inquiry into "consumer-related products and services that are connected to a network and can be controlled at a distance, for example via a voice assistant or mobile device." Commission (...)

The EU Commission launches a sector inquiry into the market for consumer products and services linked to the Internet of Things
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
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Baker McKenzie (London)
In brief The European Commission (Commission) has launched a sector inquiry into the market for consumer products and services linked to the Internet of Things (IoT). This marks the start of an intensive information gathering process in which hundreds of companies will be asked for information (...)

The EU Commission launches a sector inquiry into the Internet of Things for consumer-related products and services in the EU
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
Sector inquiry launched into the Internet of Things On 16 July 2020, the European Commission ("Commission") launched an antitrust competition inquiry into the sector of Internet of Things ("IoT") for consumer-related products and services in the EU. The inquiry complements other actions (...)

The EU Commission launches a sector inquiry into the consumer Internet of Things
Van Bael & Bellis (Brussels)
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Zepos & Yannopoulos (Athens)
On 16 July 2020, the European Commission (“Commission”) launched an antitrust sector inquiry into the market for the Internet of Things (IoT) for consumer-related products and services in the EU. According to the Commission, the sector inquiry will focus on consumer-related products and services (...)

The EU Commissions launches a sector inquiry into the Internet of Things (IoT) for consumer-related products and services
Bird & Bird (Brussels)
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Bird & Bird (Brussels)
The inquiry will focus on "consumer-related products and services that are connected to a network and can be controlled at a distance, for example via a voice assistant or mobile device, including smart home appliances and wearable devices". Consumer-related IoT products and services in the (...)

The Spanish Competition Authority publishes a guide on the treatment of confidential information in antitrust proceedings
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
The CNMC has published the “Guide on treatment of confidential information and personal data in antitrust proceedings under Law 15/2007” (Guide), aimed at providing guidance to companies and other interested parties when they request confidentiality of information or documents provided by them in (...)

The Turkish Competition Authority fines financial institutions for not responding to information requests (Citibank / Goldman Sachs / ING Bank / JPMorgan / Türkiye Garanti Bankası)
ACTECON (Istanbul)
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ACTECON (Istanbul)
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Esin (Istanbul)
No Excuses to Not Responding to Information Requests: Financial Institutions Case in Turkey* The issuance of requests for information (“RFIs”) within the scope of an investigation or a merger control case can be deemed one of the main tools that enables, on the one hand, a competition authority (...)

The German Competition Authority publishes its final sector inquiry report on smart TVs
Van Bael & Bellis (Brussels)
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Zepos & Yannopoulos (Athens)
On 1 July 2020, the German Federal Cartel Office (“FCO”) published the final report on the sector inquiry on smart TVs which revealed serious transparency shortcomings in the privacy policies of all major market players in Germany. The FCO concluded that almost all smart TV manufacturers active (...)

The UK Competition Authority publishes a series of regulatory initiatives aimed at online platforms focussed on digital advertising and signals a new path for UK clampdown on big techs due to the current inadequate competition law toolkit
Shearman & Sterling (London)
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Shearman & Sterling (London)
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DG COMP (Brussels)
On 1 July 2020, the U.K. Competition and Markets Authority (CMA) published a statement outlining a series of regulatory initiatives aimed at Google and Facebook, focussed on digital advertising. This follows the release of the CMA’s report on digital advertising and online platforms the same (...)

The German Competition Authority demands better information for consumers on the data processed by smart TVs
German Competition Authority (Bonn)
Bundeskartellamt demands better information for consumers on the data processed by smart TVs within the scope of its competencies in the area of consumer protection* Today the Bundeskartellamt has published the final report on its sector inquiry into smart TVs. Smart TVs are web-enabled TV (...)

The Indian Competition Authority approves a deal between an online platform and a telecom network provider aiming at providing local grocery stores access to e-commerce services (Facebook / JIO)
Saikrishna (New Delhi)
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National University of Study and Research in Law (Ranchi)
Background The Indian antitrust watchdog Competition Commission of India (‘CCI’) approved the popular Facebook-JIO deal (‘the deal’) on June 25, 2020. The approval came two months after Facebook announced to invest whopping $5.7 billion in Reliance Industries Limited’s (‘RIL’) subsidiary JIO (...)

The OECD holds a roundtable on consumer data rights and competition
OECD - Competition Division (Paris)
Privacy and consumer data rights are gaining more attention across the globe as more and more consumers come to rely on the services offered in the digital economy. Consumer data rights can include fundamental rights to privacy, as well as regulations controlling the manner in which consumers (...)

The EU Commission proposes a European recovery plan which would be funded by borrowing on the financial markets
Baker McKenzie (London)
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Baker McKenzie (London)
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Baker McKenzie (London)
On 27 May 2020, the European Commission put forward its proposal for a European Recovery Plan (ERP) with a new EUR 750 billion funding via its financial recovery instrument, called the "Next Generation EU" which would be funded by borrowing on the financial markets. If approved by the Member (...)

The Australian Competition Authority seeks views from parties interested in the allocation and use of the spectrum in the 26-28 gigahertz (GHz) band
Baker McKenzie (Sydney)
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Baker McKenzie (Sydney)
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Baker McKenzie (Sydney)
The Australian Competition and Consumer Commission (ACCC) seeks views by 27 March 2020 from parties interested in the allocation and use of the spectrum in the 26-28 gigahertz (GHz) band. The spectrum is to be used for 5G technology. Organisations planning to utilise 5G technology may be (...)

The Australian Competition Authority takes an action against an online platform company for allegedly engaging in misleading conduct and making false or misleading representations to customers (Google)
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
In October 2019, the Australian Competition and Consumer Commission (“ACCC") decided to take action against Google LLC and Google Australia Pty Ltd (collectively, "Google") in the Federal Court of Australia for allegedly engaging in misleading conduct and making false or misleading (...)

The Australian Competition Authority starts applying an updated cartel immunity policy which requires higher level of cooperation for leniency and introduces a new online portal for whistleblowers
King & Wood Mallesons (Sydney)
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King & Wood Mallesons (Sydney)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. From 1 October 2019, the Australian Competition and Consumer Commission (ACCC) will apply an updated cartel immunity and cooperation policy, with the changes said (...)

The Australian Competition Authority concludes its digital platforms inquiry and releases a final report containing 23 proposals for reform
Robins Kaplan (New York)
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New York University
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Australian competition law watchdog recently concluded an investigation into big technology’s market power, the first comprehensive investigation of its kind (...)

The Chinese Cyberspace Administration issues new measures for security assessment for cross-border transfer of personal information
King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. I. Background Early on the morning of June 13, 2019, Cyberspace Administration of China (“CAC”) issued the Measures for Security Assessment for Cross-border (...)

The Spanish Supreme Court confirms fines on company for their participation in cartel agreements and publishes the names of the individual in the fining decision (Cesar)
Cuatrecasas (Barcelona)
On March 28, 2019, the Spanish Supreme Court (Tribunal Supremo) issued a judgment confirming that the Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or “CNMC”) can (i) impose fines on company executives for their participation in cartel (...)

The EU Commission announces antitrust probe into data use (Amazon)
Simmons & Simmons (London)
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Simmons & Simmons (London)
The European Commission (the EU’s antitrust regulator) has announced that it is investigating Amazon’s use of third-party data as part of a wider probe into its business practices. Many retailers use Amazon as a platform to sell their products and, in doing so, provide Amazon with sales data. At (...)

The EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Van Bael & Bellis (Brussels)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)

Unilateral Practices

The French Competition Authority rejects the implementation of interim measures but continues to investigate the alleged abuse of a dominant position from a big tech company (Apple) New
University Paris Saclay
On 23 October 2020, several associations representing various players of the online advertising sector filed a complaint before the French Competition Authority, alleging that Apple abused its dominance on the application distribution market for IOS devices by imposing on app developers (...)

The Chinese Anti-Monopoly Commission of the State Council publishes anti-monopoly guidelines on platform economy
Queen Mary University (London)
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University of Chinese Academy of Social Sciences
On 10 November 2020, the State Administration for Market Regulation (“SAMR”), China’s competition authority, released the Anti-Monopoly Guidelines on the Platform Economy (Draft for Public Opinions Solicitation) (the “Draft”). Around three months later, on 7 February 2021, the Anti-Monopoly (...)

The UK Competition Authority opens an investigation into big tech company’s ‘Privacy Sandbox’ browser changes (Google)
United Kingdom’s Competition Authority - CMA (London)
CMA to investigate Google’s ‘Privacy Sandbox’ browser changes* The CMA has opened an investigation into Google’s proposals to remove third party cookies and other functionalities from its Chrome browser. The investigation will assess whether the proposals could cause advertising spend to become (...)

The US State of New York Attorney General (AG) leads a bipartisan lawsuit by 46 State AGs, District of Columbia AG, and Territory of Guam AG seeking to end the dominant social network company’s allegedly illegal monopoly, including predatory acquisitions and reduction of privacy protections for consumers (Facebook)
Office of the New York State Attorney General (Albany)
Attorney General James Leads Multistate Lawsuit Seeking to End Facebook’s Illegal Monopoly* AG James Leads Bipartisan Coalition of 48 Attorneys General Charging Anticompetitive Conduct Facebook Thwarted Competition, Reduced Consumer Privacy for Profits New York Attorney General Letitia James (...)

The UK Competition Authority, along with other national competition authorities, secures privacy changes to tech company’s mobile app store (Apple App Store)
United Kingdom’s Competition Authority - CMA (London)
CMA and global partners secure privacy changes to the App Store* Following international intervention, Apple will shortly indicate on its App Store what personal data each app uses, empowering consumer choice. The UK’s Competition and Markets Authority (CMA), along with the Netherlands (...)

The US FTC settles allegations that a real-time communications platform offering a videoconferencing software has engaged in a series of unfair practices and requires it to enhance its security procedures (Zoom) Free
During the Covid-19 pandemic, Zoom Video Communications, Inc. (Zoom) gained enough popularity to attract the FTC’s attention, including to its security practices. The FTC-Zoom settlement announced on November 9, 2020, which requires Zoom to implement a robust information security program, marked (...)

The US DOJ and 11 State AGs start landmark court case against Big Tech firm for exclusionary agreements in search and search advertising markets (Google)
US Department of Justice - Antitrust Division (Washington)
Justice Department Sues Monopolist Google For Violating Antitrust Laws* Department Files Complaint Against Google to Restore Competition in Search and Search Advertising Markets Today, the Department of Justice — along with eleven state Attorneys General — filed a civil antitrust lawsuit in the (...)

The US DoJ files an antitrust complaint against a search engine for abuse of dominant position (Google)
Orrick, Herrington & Sutcliffe (Washington)
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Orrick, Herrington & Sutcliffe (Washington)
On October 20, the U.S. Department of Justice filed its long-awaited antitrust complaint against Google, joined by 11 state Attorneys General (Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas). The lawsuit was filed in the U.S. (...)

The US DoJ files a complaint against a search engine for its unlawful monopolisation of the search and search advertising markets (Google)
Hausfeld (London)
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Hausfeld (London)
On 20 October 2020, the US Department of Justice (DoJ) and 11 State Attorney-Generals filed a much anticipated complaint against Google for its unlawful monopolisation of the search and search advertising markets in violation of Section 2 of the Sherman Act (the Complaint). The Complaint is the (...)

The Hungarian Competition Authority initiates an investigation against the operator of video-sharing social media site due to failure to provide users with sufficient information on time (TikTok)
Hungarian Competition Authority (Budapest)
The Competition Authority has initiated a proceeding against TikTok* The Hungarian Competition Authority (GVH) has initiated an investigation against the operator of video sharing social media site TikTok due to failure to provide users with sufficient information on time. TikTok is a widely (...)

The EU Court of Justice addresses how incompatibility with net neutrality shall be assessed under the relevant legislation regarding open internet access (Telenor Magyarország / Nemzeti Média- és Hírközlési Hatóság Elnöke)
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)
The Court of Justice of the European Union (“ CJEU ”), in its recent decision with regard to the two joint cases (C‐807/18 and C‐39/19) brought before it for preliminary ruling, addressed how incompatibility with net neutrality shall be assessed under the relevant legislation regarding open (...)

The Italian Competition Authority launches six investigations against some of the main operators at global level in cloud computing services (Google / Apple / Dropbox)
Italian Competition Authority (Rome)
Antitrust: Investigations launched against Google, Apple and Dropbox for their cloud computing services* The proceedings relate to allegedly unfair commercial practices and the possible presence of unfair terms in the contractual conditions The Italian Competition Authority has launched six (...)

The Australian Competition Authority takes action against online search engine in relation to allegations that it misled consumers about the collection and use of their personal information online (Google)
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
Australia’s competition and consumer regulator, the Australian Competition and Consumer Commission (ACCC), recently decided to take action against Google LLC (Google) in relation to allegations that it misled consumers about the collection and use of their personal information online, including, (...)

The German Federal Court of Justice confirms an abuse of dominance over data collection by an online platform without the user’s explicit consent (Facebook)
Bird & Bird (Dusseldorf)
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Bird & Bird (Dusseldorf)
The Federal Court of Justice (FCJ) rejected Facebook’s application for suspensive effect in connection to its appeal to the Higher Regional Court of Düsseldorf against the decision of the Federal Cartel Office (FCO) prohibiting Facebook from collecting and processing Facebook users’ data generated (...)

The German Federal Court of Justice preliminarily confirms that an online platform abused its dominant position on the German market of social networks (Facebook)
Van Bael & Bellis (Brussels)
On 23 June 2020, the German Federal Court of Justice (“FCJ”), in summary proceedings, preliminarily confirmed the finding of the Federal Cartel Office (“FCO”) that Facebook had abused its dominant position. It overturned the decision of the Higher Regional Court of Düsseldorf that had suspended the (...)

The German Federal Court of Justice provisionally confirms allegation of a social media company abusing dominant position (Facebook)
German Competition Authority (Bonn)
Federal Court of Justice provisionally confirms allegation of Facebook abusing dominant position* Facebook uses terms of service that also allow for the processing and use of user data that are collected online outside the Facebook platform. The Bundeskartellamt prohibited Facebook from (...)

The German Federal Court of Justice overturns the Düsseldorf Court of Appeals’ interim decision and finds an online social media platform to have abused its power in collecting data from different sources (Facebook)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision. The FCJ disagreed with the FCO’s (...)

The Hungarian Competition Authority fines €3,5 million a social network company for unfair commercial practices (Facebook)
Bird & Bird (Budapest)
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Bird & Bird (Budapest)
On 6 December 2019, the Hungarian Competition Office ("GVH") found that Facebook’s practice of referring to its services as “free” on its cover page and Help Centre misled Hungarian users. As a consequence, the GVH held that Facebook violated the Hungarian Unfair Commercial Practices Act ("UCPA") (...)

The Australian Competition Authority releases a report on customer loyalty schemes following a review of the major schemes operating nationally
Ashurst (Sydney)
On 3 December 2019, the Australian Competition and Consumer Commission ("ACCC") released its Final Report on Customer Loyalty Schemes ("Report"), following a review of the major schemes operating in Australia, in the airline, supermarket, credit card, travel, telecommunication and retail (...)

The Australian Competition Authority releases its final report on customer loyalty schemes with implications for all businesses that collect and use personal information
Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Melbourne)
The recommendations in the ACCC’s final report on loyalty schemes have implications for all businesses that collect and use personal information The Australian Competition and Consumer Commission (ACCC) has released the final report and recommendations coming out of its market study into (...)

The US Court of Appeals for the Ninth Circuit reformulates legal doctrines created for physical property to apply to new technology-based torts (HiQ / LinkedIn)
Constantine Cannon (Washington)
THE NINTH CIRCUIT’S DECISION IN HIQ V LINKEDIN: DATA SCRAPING MAY HAVE A FUTURE, BUT FOR HOW LONG?* Do companies that gather public information have an obligation to make that information available en masse to would-be competitors? Do competitors have a right to access those companies’ websites (...)

The Higher Regional Court of Dusseldorf quashes the Competition Authority findings that a social network abuses its dominant position by improperly combining user data that it collected from various sources (Facebook)
Hausfeld (Berlin)
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Hausfeld (Berlin)
As previously reported in this Bulletin, on 6 February 2019, the German Bundeskartellamt (Federal Cartel Office – “FCO”) found that Facebook abused its dominance by improperly combining user data that it collected from various sources. As a remedy, the FCO imposed far-reaching restrictions on (...)

The Higher Regional Court of Düsseldorf suspends the Competition Authority’s decision that a social media company’s data processing practices constitute an abuse of dominance (Facebook)
Baker Botts (London)
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Baker Botts (Brussels)
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Baker Botts (Washington)
On 26 August 2019, a German appeal court suspended an order of the German competition authority (the “FCO”) which had found that Facebook’s data processing practices in Germany constituted an abuse of dominance in breach of German antitrust rules (the “decision”). Expressing serious doubts as to the (...)

The EU Commission publishes its report to identify implications for competition policy wrought by technological changes affecting markets and consumers
Bird & Bird (Brussels)
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Bird & Bird (Brussels)
Does access to data require a new approach in antitrust aftermarket cases? In an era where data is the new "oil" turning the wheels of the digital economy, antitrust law may need to take a new approach in order to harness the flow of this most valuable commodity. The issue of access to data (...)

The German Competition Authority orders a social network company to stop collecting and matching data of its users without explicit consent as it constitutes an abuse of dominance (Facebook)
Heinz & Zagrosek (Köln)
Bundeskartellamt hits „don’t like“-button on Facebook* On February 7, 2019, Germany’s Federal Cartel Office (“FCO”) issued its long-awaited decision in the Facebook case, see press release and background paper in English here. It qualifies Facebook’s current practice of collecting and matching data (...)

The German Competition Authority finds an online platform of the social network to be dominant in the market for social networks and prohibits the company from combining user data from different sources (Facebook)
Bird & Bird (Dusseldorf)
The FCO issued a decision in its Facebook proceeding on 7th February 2019 which concerns the interface between competition law and data protection law. Facebook’s terms and conditions require the user to consent to Facebook’s unrestricted collection of user data and assignment of non-Facebook (...)

The German Competition Authority prohibits a social network company for abusing its dominant position by combining its user data from different sources (Facebook)
German Competition Authority (Bonn)
Bundeskartellamt / Digital Economy Bundeskartellamt prohibits Facebook from combining user data from different sources* Bonn, 7 February 2019: The Bundeskartellamt has imposed on Facebook far-reaching restrictions in the processing of user data. According to Facebook’s terms and conditions (...)

The German Competition Authority rules that a social network abused its dominant position by improperly combining user data that is collected (Facebook)
Hausfeld (Berlin)
On February 6th, the Bundeskartellamt (German Federal Cartel Office - “FCO”) ruled that Facebook abused its dominance by improperly combining user data that it collected. The FCO imposed far-reaching restrictions on Facebook’s processing of user data in the future, including a requirement that (...)

The German Competition Authority holds that matching the data collected by a social network company constitutes an antitrust violation (Facebook)
International Center for Law & Economics (Portland)
Doing double damage: The German competition authority’s Facebook decision manages to undermine both antitrust and data protection law* The German Bundeskartellamt (Federal Cartel Office or FCO) this week reached a decision in its nearly 3-year-old Facebook investigation. The decision appears to (...)

The German Competition Authority finds that the data gathering practices of a social network are an abuse of its dominant position, and orders amendments in its data processing policy (Facebook)
Van Bael & Bellis (Brussels)
On 6 February 2019, the German Federal Cartel Office (“FCO”) concluded administrative proceedings concerning the data gathering practices of Facebook Inc., Facebook Ireland and Facebook Germany (together “Facebook”). The FCO found that Facebook abused its dominant position by making the private use (...)

The Italian Competition Authority fines for over €109 million two companies for abusing dominance in regulated retail energy markets in order to gain customers in competitive markets (Enel / Acea)
Bird & Bird (Rome)
On 8 January 2019, the Italian Competition Authority ("AGCM") fined Enel (the national former incumbent in the electricity sector) for over EUR 93 million and Acea (the Rome municipality utility company) for over EUR 16 million for abusing dominance in regulated retail energy markets to gain (...)

The Italian Competition Authority fines a social network 10 Million euros for unfair commercial practices using its subscribers’ data for commercial purposes (Facebook)
Italian Competition Authority (Rome)
Facebook fined 10 million Euros by the ICA for unfair commercial practices for using its subscribers’ data for commercial purposes On 29 November 2018 the Italian Competition Authority (ICA), closed the investigation opened last April for alleged violations of the Consumer Code by Facebook (...)

The EU Commission sends out formal requests of information to investigate allegations of anticompetitive conduct by a multinational online retailer (Amazon)
Hausfeld (Berlin)
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Hausfeld (Berlin)
In September 2018, the European Commission (“EC”) sent out formal requests for information (“RFIs”) to investigate allegations of an anticompetitive conduct by Amazon. The investigation relates to the interdependencies between Amazon’s third-party sales platform for retailers (“Amazon Marketplace”) (...)

The EU Commission looks into an online platform’s use of online sales data (Amazon)
International Center for Law & Economics (Portland)
The Amazon investigation and Europe’s "Big Tech" Crusade* The dust has barely settled on the European Commission’s record-breaking €4.3 Billion Google Android fine, but already the European Commission is gearing up for its next high-profile case. Last month, Margrethe Vestager dropped a (...)

The German Competition Authority indicates in its preliminary assessment of possible abuse of dominance case that data collection and use from third-party sources is abusive (Facebook)
Heinz & Zagrosek (Köln)
Bundeskartellamt sends preliminary assessment to Facebook* On December 19, 2017, the Federal Cartel Office (“FCO”) published a press release on its preliminary assessment in the ongoing Facebook dominance probe, accompanied by a background paper (available in English here). The FCO considers (...)

The Indian Competition Authority clears dominant mobile messaging service from abuse of dominance allegations (Fight for Transparency Society / WhatsApp)
Vaish Associates Advocates (New Delhi)
CCI closes allegation of abuse of dominance against WhatsApp* CCI vide its recent order dated June 01, 2017 has closed an allegation of abuse of dominant position against popular message service WhatsApp. The complaint against WhatsApp was filed by an individual Vinod Kumar Gupta on behalf of (...)

The Italian Competition Authority launches an investigation into competition law breaches and personal data (WhatsApp)
White & Case (Milan)
Misleading Terms & Conditions and Unfair Contract Terms: The Italian Competition Authority Opens Two Investigations against WhatsApp Inc.* On 28 October 2016, the Italian Competition Authority (the “Authority”) opened two investigations against WhatsApp Inc. for alleged unfair commercial (...)

The French and German Competition Authority publish a joint study on competition law and data
French Competition Authority (Paris)
The French Autorité de la concurrence and the German Bundeskartellamt publish joint paper on data and its implications for Competition Law* The increasing collection, processing and commercial use of data in digital markets has prompted a broad debate about the role of data in corporate (...)

The German Competition Authority initiates proceedings against a social network company regarding potential abuse of dominance (Facebook)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The German Federal Cartel Office (the FCO) has announced that it has initiated proceedings against Facebook for the company’s alleged abuse of its dominant position in a market for social networks. The FCO appears to be taking the position that, as a firm with a possibly dominant position, (...)

The Chinese Ministry of Information and Industry Technology promulgates the provisions on regulating the market order of internet information services
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies (Beijing)
MIIT published the Provisions on Regulating the Market Order of Internet Information Services (Internet Information Service Rules) on 31 December 2011, which will take effect on 15 March 2012. MIIT had invited comments on two earlier drafts of the Internet Information Service Rules in January (...)

A Chinese District Court rules for the plaintiff in an unfair competition case relating the antivirus software industry (Tencent / Qihoo)
Cleary Gottlieb Steen & Hamilton (Hong Kong)
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Norton Rose Fulbright (Brussels)
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China Construction Bank Europe (Luxembourg)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On April 26, 2011, Beijing Chaoyang District Court (the “Court”) ruled against Qihoo, the provider of 360 (a widely used antivirus software) and two other (...)

Mergers

The EU Commission clears acquisition of healthcare manufacturer by a big tech company, subject to conditions (Fitbit / Google)
DG COMP (Brussels)
Mergers: Commission clears acquisition of Fitbit by Google, subject to conditions* The European Commission has approved, under the EU Merger Regulation, the acquisition of Fitbit by Google. The approval is conditional on full compliance with a commitments package offered by Google. Executive (...)

The EU Commission clears subject to conditions the acquisition of a healthcare devices manufacturer by a US tech giant (Fitbit / Google)
Van Bael & Bellis (Brussels)
On 17 December 2020, following a Phase II investigation, the Commission approved Google’s acquisition of Fitbit subject to commitments. Fitbit is an American company that develops and sells wearable fitness devices such as smartwatches and fitness trackers, as well as related software and (...)

The Dutch Competition Authority clears a merger between two data center companies (InterXion / Digital Reality)
Netherlands Authority for Consumers & Markets (The Hague)
ACM clears acquisition of InterXion by Digital Realty* The acquisition of InterXion by data center Digital Realty has been cleared. Both companies commercially exploit data centers in major cities around the world, including Amsterdam. The Netherlands Authority for Consumers and Markets (ACM) (...)

The OECD holds a roundtable on considering non-price effects in merger control
OECD - Competition Division (Paris)
1. Introduction 1. When firms compete, they make a range of decisions about the characteristics of their products. Consumers make purchasing decisions based on at least some of these characteristics, which determine the value they obtain from the product. Price is one such characteristic, but (...)

The EU Commission fines a social network company for providing misleading information during a merger investigation (Facebook / WhatsApp)
DG COMP (Brussels)
Mergers: Commission fines Facebook €110 million for providing misleading information about WhatsApp takeover* The European Commission has fined Facebook €110 million for providing incorrect or misleading information during the Commission’s 2014 investigation under the EU Merger Regulation of (...)

The EU Commission fines an undertaking €110 million for providing misleading information to the Commission during its review of the acquisition (Facebook / WhatsApp)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (Paris)
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Herbert Smith Freehills (London)
On 18 May 2017, the European Commission imposed a record fine of €110 million on Facebook for providing incorrect/misleading information to the Commission during its review of Facebook’s acquisition of WhatsApp under the EU merger regulation (EUMR). On the same day, the Commission issued a (...)

The EU Commission clears the acquisition of a leading global professional social networking platform company by a leading global software company, subject to 5-year remedies that include monitoring and prevention of tying (Microsoft / LinkedIn)
European Commission - Legal Service (Brussels)
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DG COMP (Brussels)
Microsoft/LinkedIn: Big data and conglomerate effects in tech markets* In a nutshell: The Microsoft/LinkedIn case is an important development in the Commission’s assessment of mergers involving data-related issues in tech industries. It provides further guidance on the framework for the (...)

The EU Commission clears a merger subject to remedies on the professional social networks market (Microsoft / LinkedIn)
DG COMP (Brussels)
MERGERS: COMMISSION APPROVES ACQUISITION OF LINKEDIN BY MICROSOFT, SUBJECT TO CONDITIONS* The European Commission has approved under the EU Merger Regulation the proposed acquisition of LinkedIn by Microsoft. The decision is conditional on compliance with a series of commitments aimed at (...)

The EU Commission conditionally clears a merger in the professional social network market (Microsoft / LinkedIn)
McDermott Will & Emery (Brussels)
European Commission Approves Microsoft Acquisition of LinkedIn Subject to Conditions* On 6 December 2016, the European Commission cleared the acquisition of LinkedIn by Microsoft, subject to Microsoft granting LinkedIn’s competitors access to certain LinkedIn tools. “BIG DATA” CONCERNS ANALYSED (...)

The EU Commission invites third party comments on a proposed acquisition in information technology sector (Microsoft / Linkedin)
Steptoe & Johnson (London)
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Fieldfisher (London)
Microsoft/LinkedIn: could Big Data be a Big Problem?*On 14 October 2016, Microsoft’s $26.2 billion acquisition of LinkedIn was notified to the European Commission for merger clearance. The EU regulator’s initial deadline to decide whether to approve the deal or refer it for in-depth (...)

The EU Commission unconditionally approves in first phase an acquisition in the digital sector (Facebook / WhatsApp)
DG COMP (Brussels)
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European Commission (Brussels)
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European Commission - Legal Service (Brussels)
"What’s Up with Merger Control in the Digital Sector? Lessons from the Facebook/WhatsApp EU merger case"* The Facebook/WhatsApp decision provides an insight into how the Commission tackles novel issues in the application of merger control rules to the digital sector, in particular to free (...)

The EU Commission unconditionally clears an acquisition in the social media sector (Facebook / WhatsApp)
Ramón y Cajal (Madrid)
Background information On 3 October 2014 the European Commission ("Commission") unconditionally clears in first phase the €14 billion acquisition of WhatsApp by Facebook (the “Transaction”). The Transaction was already conditionally authorized in April 2014 by the US Federal Trade Commission (...)

The Australian Competition Authority and the Chinese MOFCOM sign a memorandum of understanding allowing the exchange of information between the agencies on mergers that affect both the Australian and Chinese markets
Australian Competition and Consumer Commission (Canberra)
Australia and China to increase cooperation on mergers regulation* The Australian Competition and Consumer Commission and the Ministry of Commerce of the People’s Republic of China (MOFCOM) have signed a memorandum of understanding. ACCC Chairman Rod Sims said the agreement paves the way for (...)

The EU Commission clears a merger in the online advertising market applying for the first time the non horizontal merger guidelines (Google / DoubleClick)
DG COMP (Brussels)
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DG COMP (Brussels)
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European Commission (Brussels)
"Google/DoubleClick: The first test for the Commission’s nonhorizontal merger guidelines"* I. Introduction The Google/DoubleClickmerger generated considerable interest as it concerned the ubiquitous search engine that most Europeans use in their daily lives. From a competition policy (...)

The EU Commission clears an acquisition in the online advertising market (Google / DoubleClick)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 11 March the Commission decided to clear the proposed acquisition of the online advertising technology company DoubleClick by Google, both based in the US. Google operates an internet search engine that offers search (...)

Procedures

The President of the EU General Court issues two orders for interim measures on personal data gathered in EU antitrust probes against social media platform (Facebook)
Clifford Chance (Milano)
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Clifford Chance (Brussels)
In the context of ongoing antitrust investigations into Facebook Inc.’s (‘Facebook’) data-related practices (AT.40628) and Facebook marketplace (AT.40684), on 13 March 2020 the European Commission (‘Commission’) issued two formal requests for information (‘RFIs’), requiring the company to produce a (...)

The EU General Court’s President suspends RFIs requiring the production of documents containing sensitive personal data until specific virtual data room procedure is set up (Facebook)
Van Bael & Bellis (Brussels)
On 29 October 2020, the President of the General Court (“GC”) issued two orders suspending the operation of requests for information (“RFIs”) issued to Facebook Ireland Ltd (“Facebook”) by the European Commission (“Commission”) concerning documents that are not related to Face- book’s commercial (...)

The EU Court of Justice clarifies the extent of whether a document containing sensitive personal information requested as part of an RFI is relevant for an investigation by ordering interim measures in a Court order (Facebook)
Deloitte (Brussels)
Just How Far Could We and Should We Stretch the Facebook V Commission Court Order?* The Court order of 29 October 2020 struck by the President of the General Court in a dispute between Facebook and the European Commission is probably the first time in a while where the essence of a case (...)

The English High Court confirms that legal advice privilege applies to foreign in-house lawyers (PJSC Tatneft / Bogolyubov)
Covington & Burling (London)
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Covington & Burling (London)
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Covington & Burling (London)
In this alert, we review a welcome English High Court decision, which confirms that legal advice privilege extends to communications with foreign lawyers who provide legal advice in their capacity as in-house counsel. The decision of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov and others (...)

The EU Council adopts a directive aimed at improving the protection of whistle-blowers in the European Union
Ashurst (Brussels)
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Ashurst (Brussels)
On 7 October 2019, the European Council formally adopted a Directive aimed at improving protection of whistle-blowers in the EU (the "Directive"). The Directive will now be published in the Official Journal of the European Union ("OJEU") and will enter into force 20 days after publication. (...)

The Higher Regional Court of Düsseldorf suspends an order of the German Competition Authority on an alleged abuse of dominance in the social networks (Facebook)
Baker Botts (London)
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Baker Botts (Washington)
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Baker Botts (Brussels)
On 26 August 2019, a German appeal court suspended an order of the German competition authority (the “FCO”) which had found that Facebook’s data processing practices in Germany constituted an abuse of dominance in breach of German antitrust rules (the “decision”). Expressing serious doubts as to the (...)

The Higher Regional Court of Düsseldorf orders suspensive effect of an appeal against FCO decision concerning a social network company (Facebook)
Van Bael & Bellis (Brussels)
On 26 August 2019, the Higher Regional Court of Düsseldorf (the “Court”) granted Facebook’s request for an injunction against the immediate application of measures imposed by the German Federal Cartel Office (the “FCO”) arising from the FCO’s finding in February 2019 that Facebook abused its dominant (...)

The Higher Regional Court of Düsseldorf grants a social network company the suspensive effect to an appeal in an interim decision (Facebook)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Frankfurt)
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White & Case (Dusseldorf)
In February of this year the German antitrust agency, the Federal Cartel Office, issued a decision against Facebook regarding their handling of user data. Facebook appealed and on August 26, 2019, the Düsseldorf Court of Appeal in an interim decision granted suspensive effect to Facebook’s (...)

The Higher Regional Court of Düsseldorf suspends the decision of the German Competition Authority which prevented data gathering practices from a social network company (Facebook)
Ashurst (Frankfurt)
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Ashurst (London)
On 26 August 2019, the Higher Regional Court in Düsseldorf suspended the German Federal Cartel Office’s (’FCO’ or Bundeskartellamt) decision to prevent Facebook from combining user data from various sources such as Facebook, Instagram, WhatsApp and unrelated sites that use Facebook analytics and (...)

The Higher Regional Court of Düsseldorf suspends the effect of the Competition Authority’s decision after receiving a complaint questioning the finding of an abuse of dominance in the social network market (Facebook)
Bird & Bird (Dusseldorf)
On 26 August 2019, the Higher Regional Court of Düsseldorf (“Court”) suspended the effect of the Facebook decision of the German Federal Cartel Office (“FCO”) after a complaint by Facebook questioning in particular the FCO’s finding of an abuse of a dominant market position by Facebook. Facebook had (...)

The EU Data Protection Supervisor, the EU Commission and the EU Parliament clarify how data protection laws apply to competition investigations
McDermott Will & Emery (Paris)
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Norton Rose Fulbright (Brussels)
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McDermott Will & Emery (Brussels)
The application of the GDPR from 5 May 2018 has had a significant impact on the way companies manage their data in various areas. In the field of competition, the GDPR might well cause companies that face competition investigations to wonder whether they should provide personal data in (...)

The OECD holds a roundtable on the treatment of legally privileged information in competition proceedings
OECD - Competition Division (Paris)
Most OECD jurisdictions protect the confidentiality of the relationship between a client and its attorney, and grant parties in competition proceedings the right to resist disclosure of protected information to public bodies and third parties. Legal professional privilege is a corollary of the (...)

The EU General Court confirms that the EU Commission may rely on recordings seized unlawfully by a third party in a dawn raid (Heiploeg)
Norton Rose Fulbright (Brussels)
GENERAL COURT CONFIRMS THAT THE COMMISSION MAY RELY ON LAWFULLY SEIZED RECORDINGS EVEN IF MADE UNLAWFULLY BY A THIRD PARTY* On 8 September 2016 the General Court (“GC”) dismissed Heiploeg’s appeal against the European Commission’s (“Commission”) decision in Shrimps (AT.39633) and confirmed that the (...)

The Irish High Court finds that the Competition Authority has exceeded its dawn raid powers in seizing digital material in bulk (CRH / CCPC)
McCann FitzGerald (Dublin)
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McCann FitzGerald (Brussels)
Introduction In CRH plc v The Competition and Consumer Protection Commission the Irish High Court found that the Irish Competition and Consumer Protection Commission (“CCPC”) had exceeded its dawn raid powers in seizing digital material in bulk. The High Court granted orders preventing the CCPC (...)

The EU Court of Human Rights rules that French dawn raids breached fundamental rights (Vinci / GTM)
JPTT-Vitale (Paris)
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White & Case (Brussels)
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White & Case (Brussels)
The European Court of Human Rights (the “ECtHR”) has ruled in the Vinci case that the circumstances surrounding the electronic removal of documents and computer files during a dawn raid violated two companies’ privacy rights enshrined in the European Convention on Human Rights (“ECHR”) . The case (...)

The EU Court of Human Rights rules that dawn raids carried out at the premises of two companies by the French Department for Competition, Consumer Protection and Fraud violates both the rights of defense and the right to privacy (Vinci / GTM)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Paris)
The European Court of Human Rights (ECtHR) recently ruled that dawn raids carried out at the premises of two French construction companies by the DGCCRF (French Department for Competition, Consumer Protection and Fraud) violated both the rights of defense and the right to privacy, due to (...)

The US District Court of New Jersey rules that the Federal Trade Commission can pursue claims against a company for failure to have adequate data security (Wyndham Worldwide)
Gibson Dunn (Washington)
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,
O’Melveny & Myers (Washington DC)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Issue In a decision that is likely to result in increased federal enforcement actions against companies that suffer data security breaches but are found not to (...)

Regulatory

The UK Competition Authority and the Data Protection Authority publish a joint statement on how competition and data protection issues overlap in the digital economy New
Bird & Bird (London)
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Bird & Bird (London)
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Bird & Bird (London)
The well-known (and somewhat over-simplistic) paradox that data protection laws aim to keep personal data contained whilst competition law wants personal data to be more freely available is the premise behind the two UK regulators’ latest collaboration. In the last two years, the UK Data (...)

The EU Commission announces a package of digital markets legislation intended to better regulate major online platforms and to protect consumers and businesses
Hausfeld (London)
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Hausfeld (London)
On 15th December, the European Commission announced a package of digital markets legislation intended to give the Commission the power to better regulate major online platforms and to protect European consumers and businessess for effectively: the Digital Services Act and the Digital Markets (...)

The EU Commission publishes proposed rules for the regulation of digital services by imposing a series of ex-ante behavioral obligations on entities that are considered as ‘gatekeepers’
Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
The European Commission has today published the long awaited Digital Markets Act proposal. The Proposed Regulation imposes a series of ex ante behavioural obligations on entities that the Commission designates as ‘gatekeepers’. The obligations for those designated platforms and the potential (...)

The EU Commission proposes legislation to overhaul regulation of digital platforms in the EU
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
On 15 December the European Commission announced far-reaching proposals for regulation of the digital sector in the form of a Digital Services Act (DSA) and a Digital Markets Act (DMA). In summary the DSA contains new rules including on illegal content and transparency. It applies to all (...)

The UK Competition Authority publishes its long-awaited final report of its online platforms and digital advertising market study
Hausfeld (London)
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Hausfeld (London)
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Hausfeld (London)
On 1 July 2020, the UK’s Competition and Markets Authority published its long-awaited final report of its online platforms and digital advertising market study (CMA Final Report). In so doing, it has confirmed what many have been saying for some time: serious competition concerns exist in this (...)

The Australian Competition Authority commences an inquiry into the digital advertising technology supply chain and advertising agency services in Australia and releases an issues paper encouraging interested stakeholders to provide their feedback
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
The ACCC has now commenced an inquiry into the digital advertising technology supply chain and advertising agency services in Australia, releasing an issues paper encouraging interested stakeholders (including advertisers and ad hosts) to provide their feedback on key issues affecting the (...)

The EU Commission publishes a package of initiatives on Europe’s digital future to create legislation on AI and big data
Norton Rose Fulbright (Brussels)
The New EU AI and Data Strategy and what it Means for EU Antitrust Reform* On February 19, the European Commission (EC) published a package of initiatives (the AI and Data Package) on Europe’s “digital future,” delivering on the promise in President von der Leyen’s political guidelines to put (...)

The Italian Competition Authority, the Communications Authority and the Data Protection Authority publish the findings of a joint sector inquiry into the field of big data
Portolano Cavallo (Milan)
On February 10, 2020 the Italian Authorities for Communications, Competition and Data Protection published the findings of a joint sector inquiry into the field of Big Data (“Investigation”), which lasted almost three years. It was launched on May 30, 2017 to study the functioning and impact of (...)

The Italian Competition Authority and two other Regulations Authorities publish a joint investigative report on big data
Court of First Instance of Namur (Namur)
On 10 February 2020, the Italian Competition Authority, the Authority for Communications Guarantees and the Authority for the Protection of Personal Data (together the “Authorities”) published a joint investigative report on big data (the “Report”). The Report is based on a one-year survey carried (...)

The Italian Competition Authority publishes the final report of the big data joint fact-finding survey which was launched in collaboration with the Communications Regulatory Authority and the Data Protection Authority
Bird & Bird (Rome)
On 10 February 2020, the Italian Competition Authority (“ICA”) published the final report of the Big Data joint fact-finding survey, launched in collaboration with the Italian Communications Regulatory Authority ("AgCom") and the Data Protection Authority on 30 May 2017. As part of the (...)

The EU Commission endorses the toolbox of mitigating measures aiming to secure 5G network in the Union due to alleged ties between certain telecom equipment suppliers and foreign governments
Jones Day (Amsterdam)
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Jones Day (Brussels)
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Jones Day (Brussels)
In January 2020, the European Commission endorsed the Toolbox of mitigating measures agreed by the Member States of the European Union to address security risks related to the rollout of 5G. The protection of national security, and cybersecurity in particular, are unquestionably legitimate (...)

The Australian Competition Authority releases its final report in the digital platforms inquiry
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
In mid-2019, the Australian Competition and Consumer Commission ("ACCC") released its final report in the landmark Digital Platforms Inquiry ("Final Report"), in which it recommended, amongst other things, amendments to section 50(3) of the Competition and Consumer Act 2010 (Cth), which forms (...)

The Australian Competition Authority publishes its final report on the challenges and opportunities in the digital platforms market
Herbert Smith Freehills (Melbourne)
The ACCC is at the forefront of the global debate on the implications and consequences of digital platforms for competition and consumers. In its final report, the ACCC has approached the challenges and opportunities presented by digital platforms by adopting a holistic approach that takes (...)

The Italian Competition Authority publishes guidelines and policy recommendations for big data aimed to understand the implications that developments in digital economy have for antitrust, regulation and consumer protection
Ashurst (Brussels)
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Ashurst (Milan)
BIG DATA: ITALIAN AUTHORITIES PUBLISHED GUIDELINES AND POLICY RECOMMENDATION ON COMPETITION, CONSUMER PROTECTION AND DATA PRIVACY ISSUES* Introduction On July 10, 2019, the Italian Competition Authority (“ICA”), the Authority for the Communications Guarantees (“AGcom”), and the Authority for the (...)

The Italian Competition Authority issues with two others Italian authorities guidelines and recommendations related to policies for Big Data
Italian Competition Authority (Rome)
Big data: the guidelines and recommendations of policies shared by the three Authorities* The Italian Competition Authority, the Authority for the Communications Guarantees and the Authority for the protection of personal data have published the guidelines and recommendations of policies for (...)

The French Competition Authority announces that seven regulators have published a joint memo of their common approach to data-driven regulation
French Competition Authority (Paris)
Cooperation between regulators* Seven regulators publish the fruit of their common approach to data-driven regulation Data-driven regulation, an additional tool for regulators In this era of unceasing innovation, regulators rely more and more on the collection, utilisation and publication of (...)

The EU Commission publishes a report on competition policy for the digital sector
Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
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Hogan Lovells (London)
On 4 April 2019, the European Commission published the much anticipated Report Competition Policy for the digital era (hereinafter referred to as the "Report"). Authored by a panel of special advisers (all academics) appointed by Competition Commissioner, Margrethe Vestager, the Report explores (...)

The Australian Competition Authority publishes the draft that set out how the consumer data right is implemented and how it operates in practice in the banking sector
Bird & Bird (Sydney)
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Bird & Bird (Sydney)
On 29 March 2019, the Australian Competition and Consumer Commission (“ACCC”) published the draft Competition and Consumer (Consumer Data) Rules 2019 (the “Draft Rules”). The Draft Rules set out how the Consumer Data Right (the “CDR”) will be implemented, and how it will operate in practice. The CDR (...)

The UK Digital Competition Expert Panel releases its report setting out its proposed changes for effective regulation of the digital economy
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
On 13 March 2019, the UK’s Digital Competition Expert Panel, led by advisor to former US President Barack Obama, Professor Jason Furman, released its report setting out its proposed changes for effective regulation of the digital economy (the Report). UK Chancellor, Phillip Hammond, who (...)

The Finnish Competition Authority issues a report on competition law in the data economy
Finnish Competition and Consumer Authority (Helsinki)
FCCA: Competition and consumer protection are fundamental to data economy* With the market for digital products and services is growing, the functionality of competition and consumer protection are important considerations. A report by the Finnish Competition and Consumer Authority (FCCA), (...)

The EU Commission hosts conference to address the challenges of digitization for competition policy
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
“Shaping Competition Policy in the era of digitization”: The European Commission hosts a conference with academic and business leaders to address the challenges of digitization for competition policy. On 17 January 2019, the European Commission hosted an experts conference to address the (...)

The EU Commission publishes a code to regulate communications in Europe
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Amsterdam)
In Short The Situation: On December 18, 2018, the European Union published its European Electronic Communication Code ("Code"). The Result: The Code overhauls the current legislative framework for telecommunications with the aim of consolidating existing legislations into a single Act. (...)

The OECD holds a roundtable on quality considerations in the zero-price economy
OECD - Competition Division (Paris)
Over the course of a single day, most consumers will come into contact with at least one product that is offered to them at a price of zero. Business models centred around the zero-price provision of products are not new. However, in the digital economy, new zero-price markets have arisen with (...)

The OECD holds a roundtable on e-commerce
OECD - Competition Division (Paris)
1. Introduction 1. E-commerce – broadly, buying and selling online – is a global phenomenon and an important expanding distribution mechanism across the OECD. During the last decade, e-commerce activities have been growing both in the demand and supply side, as seen by the increasing number of (...)

The Canadian Telecom Regulator has an opportunity to effectively control online piracy based on a proposal from a coalition of telecom operators and rights holders (FairPlay Canada)
International Center for Law & Economics (Portland)
The Canadian Parliament Has an Opportunity to Effectively Control Online Piracy In an ideal world, it would not be necessary to block websites in order to combat piracy. But we do not live in an ideal world. We live in a world in which enormous amounts of content—from books and software to (...)

The German Competition Authority publishes a paper on "Big Data and Competition" as Big Data and digital markets remain in the focus of EU competition authorities
Hogan Lovells (Brussels)
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Hogan Lovells (Munich/Frankfurt)
I. Introduction On 6 October, the German Federal Cartel Office (’FCO’) launched its new series of papers on ’Competition and Consumer Protection in the Digital Economy’. The first paper deals with ’Big Data and Competition’. The same day, a ’real-life example’ of competition enforcement in Big Data (...)

The German Federal Ministry for Economic Affairs and Energy proposes establishing a Digital Agency for the regulation of digital markets
Hogan Lovells (Brussels)
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Hogan Lovells (Munich/Frankfurt)
Germany suggests ramping up regulation of digital platforms by establishing Digital Agency with robust antitrust mandate* Will Germany establish a “Digital Agency” to monitor compliance with competition law rules in digital markets? Will a German “Digital Antitrust Enforcer” become a role model (...)

The OECD holds roundtable on dig data
OECD - Competition Division (Paris)
Executive summary, by the Secretariat * The 126th meeting of the Competition Committee held a Hearing on 29 November 2016 to discuss Big Data and the challenges of adapting competition policy to the digital economy. Considering the background note prepared by the OECD Secretariat with the (...)

The German Competition Authority publishes discussion paper on internet platforms in merger control, contractual restrictions of competition and abuse of dominance scenarios
Heinz & Zagrosek (Köln)
The FCO publishes discussion paper on internet platform markets* On October 1, 2015, the FCO published a paper entitled “Digital economy – internet platforms between competition law, privacy and consumer protection” on the occasion of a conference of the working group competition law (consisting (...)

The EU Commission releases its strategy for a digital single market in the EU
Covington & Burling (London)
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Covington & Burling (Brussels)
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Covington & Burling (Brussels)
Earlier today, Vice-President Andrus Ansip (Digital Single Market) unveiled the European Commission’s long-awaited strategy aiming to achieve a single, borderless, European online marketplace and kick-start growth in the European digital economy. The Commission’s roadmap includes several (...)

The US FTC releases draft strategic plan for 2014-2018
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
The Federal Trade Commission ("FTC") has released a draft Strategic Plan for Fiscal Years 2014-2018 (the "2014 Plan"). Despite the ambitious title, the 2014 Plan actually focuses on a small number of procedural issues. It provides no indication of the FTC’s likely substantive agenda or (...)

The OECD holds a roundtable on competition and regulation in retail banking
OECD - Competition Division (Paris)
Key documents: Executive Summary with key findings, Detailled Summary of the discussion, Background note Executive summary, by the Secretariat Considering the discussion, the delegates’ submissions, and the background paper, several broad results emerge: 1. Competition can improve the (...)

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