EU Competition Law Newsletter
Below are links to EU Competition Law Newsletters that Cleary publishes each month.
2023
February—March
Highlights
Advocate General Rantos’ Opinion In Autoridade Da Concorrência and ECP (Case C-331/21) On The Notion Of Potential Competition And The Distinction Between Restrictions “By Object” And “By Effect”
- On March 2, 2023, Advocate General Rantos delivered his opinion on the questions referred to the Court of Justice by the Lisbon Court of Appeals (referring court) in Autoridade da Concorrência and EDP. The referring court seeks clarification on whether an association agreement between undertakings operating in different product markets can constitute an agreement with an anticompetitive object for the purposes of Article 101 TFEU, and subject to what conditions. The case gives the Court of Justice the opportunity to address the circumstances under which two undertakings can be considered potential competitors, including in light of its recent judgment in Generics (UK). The case should also provide further clarity on whether proof of anticompetitive effects is needed for a non-compete agreement between potential competitors to qualify as an infringement. On these points, Advocate General Rantos advised the Court of Justice to rule that the standard to establish “potential competition” is not heightened where undertakings operate in separate product markets, and that the non-compete agreement at issue should be regarded as an infringement “by object.”
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News
Commission Updates
The Commission Looks Back at Aegean Airlines/Olympic Air
- In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor. In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense. It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel, Ryanair/Aer Lingus, Ineos/Solvay. The final report is scheduled for publication later this year.
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Commission conditionally clears the acquisition of VOO and Brutélé by Orange
- On March 20, 2023, the Commission conditionally cleared Orange’s acquisition of VOO and Brutélé, two operators in the Belgian telecommunication market. The transaction was notified in the EU on June 22, 2022, following which the Commission opened an in-depth investigation in July of last year.
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The Commissions Strips Back Concerns In A New Statement Of Objections To Apple Regarding Its App Store Practices
- February 28, the Commission issued a new Statement of Objections to Apple where it narrowed its concerns related to Apple’s App Store practices. The latest Statement of Objections focuses only on Apple’s anti-steering provisions for music streaming app developers and no longer raises concerns about Apple’s requirement for app developers to use its proprietary in-app payment system, a concern that had featured in the previous Statement of Objections.
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Court Updates
Altice Defends its Appeal of the General Court’s Decision to Uphold Record Gun-Jumping Fine in a Hearing before the Court of Justice
- On February 1, 2023, the Court of Justice held a hearing in Altice’s appeal against the General Court’s decision in 2021 to largely uphold the Commission’s record fine for gun-jumping in the Altice/PT Portugal transaction. Altice’s defense at the hearing hinged on three claims: (i) the Commission wrongly fined Altice twice for failure to notify and for breaching the standstill obligation; (ii) Altice did not acquire veto rights, and therefore control, by signing the Share Purchase Agreement (“SPA”); and (iii) the Commission breached the principle of proportionality by failing to explain its reasoning in setting the fines.
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Please click here to read the complete Newsletter.
2022
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Quarterly Reports
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2015
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2010