COMMEO

COMMEO on tour at the 11th AIJA Antitrust Conference in Málaga!   Christoph Weinert and Julia Sagasser attended this year’s AIJA - International Association of Young Lawyers Antitrust Conference on “New technologies: Is IP/TMT and Antitrust law future proof?” Special thanks to the fantastic OC for preparing such a thoughtful academic program focusing on the intersection between competition law and IP law - together with an unforgettable social programme… #paddlesurfing 🏄♂️. It was great meeting old friends and making new contacts from all over the world.   #meetingcompetition #networking #antitrustlaw

Immer wieder schön, an einem Mammutwerk mitzuwirken und vor allem das finale Buch 📘 in den Händen zu halten. Dominique S. Wagener und Isabel Oest haben auch in der 2. Auflage des „Handbuch Kartellverfahren und Kartellprozess“ mit Freude die Teilkommentierung zum deutschen Kartellordnungswidrigkeitenverfahren, konkret zu Sanktionen, Kronzeugenprogramm, Vergleichen und Rechtsschutz übernommen. Nach mehreren GWB-Novellen seit der 1. Auflage (2017) gab es nicht unerheblichen Überarbeitungsbedarf, sodass der Abschluss besonders fröhlich stimmt. 😊   Vielen Dank an die Herausgeber Hans-Georg Kamann, Stefan Ohlhoff und Sven Voelcker und natürlich den Verlag C.H.BECK oHG für die reibungslose Zusammenarbeit und ein herzliches Prosit an alle Mitautorinnen und Mitautoren 👏 Wir sehen uns auf der Buchpräsentationsparty (but no pressure…)

COMMEO Quick News: Commission adopts the first final decision under the Foreign Subsidies Regulation (FSR)   Following the first in-depth FSR investigation for a notifiable transaction, the Commission cleared the acquisition by the telecommunications operator 📶 ☎️ Emirates Telecommunications Group Company PJSC (‘e&') of sole control of the PPF Telecom Group B.V. (‘PPF') subject to conditions on 24 September 2024. e& is controlled by a sovereign wealth fund controlled by the UAE, the Emirates Investment Authority (‘EIA').   🔍 The Commission’s findings: - e& and EIA received foreign subsidies from the UAE, among others an unlimited State guarantee 💸 - the foreign subsidies did not lead to actual or potential negative effects on competition in the acquisition process as e& was the sole bidder and had sufficient own resources - the foreign subsidies could have led to a distortion of competition in the EU internal market post-transaction since they would have artificially improved the financing powers of the merged entity for its activities in the EU, for example, relevant for spectrum auctions or in the deployment of infrastructure   🤝 The proposed commitments (initially valid for 10y): - a commitment that e&'s articles of association do not deviate from ordinary UAE bankruptcy law, thereby removing the unlimited State guarantee - e& and EIA are prohibited from financing PPF's activities in the EU internal market, subject to certain exceptions - e& must inform the Commission of future acquisitions that are not notifiable concentrations under the FSR   Even though only the press release is available as of now (see link here: https://lnkd.in/edRTN5ry), this first decision gives valuable insight into the Commission’s assessment for the first FSR clearance for transactions. No doubt, there is more to come!   #FSR #firstclearance #commitments #telecommunicationssector #unlimitedguarantee #meetingcompetition

COMMEO Quick News: Booking.com's price parity clauses violate competition law – the ECJ has now ruled   In a preliminary ruling (Case C-264/23) dated 19/9/2024, the ECJ has now confirmed: the price parity clauses imposed by Booking.com in its contracts with hotels restrict competition between hotel booking platforms and thus are not valid under EU competition law. In particular, Booking.com's best price clauses (whether wide or narrow) do not constitute an ancillary restraint falling outside the scope of the prohibition of cartels under Art. 101 TFEU.   Background in brief:   🌴🛏 Booking.com imposes so-called price parity clauses on hotels wishing to use Booking.com’s online reservation platform. Such clauses prevent hotels from offering overnight stays at better conditions on distribution channels other than Booking.com (wide price parity clauses) or prohibit hotels from offering better conditions on their own website (narrow price parity clauses).   🌅 Both wide and narrow price parity clauses are contrary to Art. 101 TFEU - the ECJ has now ruled. In particular, price parity clauses do not fall outside the scope of Art. 101 TFEU as they cannot be classified as ancillary restraints. Although the provision of online hotel reservation services has had a positive effect on competition, it has not been established that price parity clauses are objectively necessary to ensure the economic viability of Booking.com’s hotel reservation platform and also proportionate to the objective pursued.   You can find the ECJ’s full decision here: https://lnkd.in/eK9dQc83   #meetingcompetition #competitionlaw #Booking.com #priceparityclause

The 28th Annual Competition Conference of the International Bar Association is over. Why these conferences are so fantastic: 🤗 Meeting colleagues from all over the world 💡 Discussions of hot topics among experts; and, with a bit of luck, participating in such a discussion on a panel 🌞 Set against the backdrop of wonderful Florence with its unique combination of magnificent art, breathtaking architecture and bustling commerce ❗ Many thanks to Leonor Cordovil and Kyriakos Fountoukakos for the fantastic moderation of our panel on which we discussed the challenges for “Successful deal execution in the face of tough merger control enforcement” with Ronan Harty, Fernando Castillo de la Torre and Mariam Sabet. #meetingcompetition #florenceinseptember #dealexecution #mergercontrol

Abuse of a Superior Bargaining Position under Japanese Antitrust Law   Japan is not only famous for its motorbikes 🏍, but also for innovative and effective antitrust concepts! Similar to the concept of relative market power under German competition law, the Japanese competition law includes a special type of prohibited single firm conduct that is called “Abuse of a Superior Bargaining Position” (ASBP). The prohibition of ASBP applies to parties in a position of strength, but it has a broader scope of application than the prohibition on private monopolisation (this is how abuse of market dominance is called in Japan). ASBP exists when a party in a relative superior bargaining position ⚖ engages in abusive conduct that runs the risk of being an "impediment to competition". Typical examples of ASBP are forced purchases, requests for economic benefits 🈹, or delaying payments towards the dependent party of the transaction.   🚨 On 30 July 2024, the Japanese competition authority JFTC conducted a dawn raid at the offices of the motorbike company Harley-Davidson Japan on the suspicion of ASBP. The JFTC suspects that Harley-Davidson Japan forced dealers to buy motorcycles out of their own pockets to reach sales quotas prescribed in their dealership contracts. If dealers failed to sell the assigned number of motorbikes, Harley-Davidson Japan allegedly forced them to buy the remaining vehicles by threatening to not renew contracts. It has been reported that dealers thus buy motorcycles under the names of employees or others to meet the sales quotas. Despite not having set wheels on the street, such motorcycles are then considered registered and can only be sold to customers at much lower prices, leading to huge losses for the dealers.   Interestingly, the Japanese prohibition of ASBP does not only apply between businesses. In guidelines published in 2019, the JFCT clarified that consumers 👨👩👧👦 can also be subject to abusive conduct by a superior party. ASBP against consumers can be found, for example, when consumers have no choice, but to accept the detrimental treatment by a digital platform to use the service provided by such a digital platform. Sounds a lot like some of the new DMA features in the EU! 💡 📸 Iroha Slope, a gem for Japanese motorcyclist 🏍, is a pair of spectacular sightseeing roads connecting Nikko-city and the mountainous Lake Chuzenji & Kegon Falls area which our COMMEO Franziska Lange-Schlüter explored (by bus) during her secondment in Japan 🗾   #COMMEOJapanDesk #ASBP #relativemarketpower #dawnraid #motorbikes #meetingcompetition 

COMMEO Quick News: The ECJ with the last word in the “Google Shopping story” The ECJ has spoken, and Google lost its fight against a record-breaking €2.42 billion fine imposed by the EU antitrust regulator for abusing its dominant position on the markets for online general searches and for specialised product searches by favouring its own comparison shopping service. In today’s judgement, the ECJ upheld the Commission’s fine and found that the General Court correctly established that Google’s self-preferencing was discriminatory and violated competition law. Background in brief: 🛒 In 2017, the Commission found that Google had given preference, on its general search results pages, to the results of its own comparison shopping service over those services of Google’s competitors. Throughout the EEA, Google presented the search results of its own service in a primary position and promoted them in “boxes” with accompanying attractive image and text information. The Commission considered this self-preferencing as an abuse of Google’s dominant market position. 🛒 Google challenged the Commission’s decision before the General Court, which largely dismissed Google’s action and upheld the fine in 2021. This led to Google lodging an appeal with the ECJ seeking the judgement of the General Court to be set aside and the Commission’s decision to be annulled. 🛒 Early this year, Advocate General Kokott proposed in a non-binding opinion that the ECJ should dismiss the appeal and confirm the fine imposed on Google. And that is what the ECJ did today! You can find the ECJ’s full decision here: https://lnkd.in/eMZNJyvh #meetingcompetition #GoogleShopping #EUcaselaw #competitionlaw

The European Court of Justice's decision Illumina/Grail, merger control under Art. 22 ECMR and other below threshold review options   If you want to get some background information on the landmark ECJ ruling that the whole (antitrust) world 🌎 is discussing this week, check out Franziska Lange-Schlüter's and Isabel Oest's latest newsletter! It explains the legal saga surrounding the Illumina/Grail merger and the – now limited – scope of the Art. 22 ECMR referral mechanism. The newsletter also sheds further light 💡 on other options for reviewing transactions 🔍 that do not meet the EU or national merger filing thresholds, namely the Towercast doctrine under Art. 102 TFEU and the emerging trend of call-in powers of national competition authorities in Europe.   A German version of the newsletter can be found here: https://lnkd.in/e8aabysj #IlluminaGrail #Article22ECMR #ECJ #mergercontrol #callinpowers #Towercast #meetingcompetition

COMMEO Quick News   Breaking: The ECJ ends the battle over the limits of the European Commission's merger examination power with a bang - The Commission’s new Article 22 “below threshold referral policy” is invalidated, and the Illumina/Grail appeal upheld.   The ECJ has had the last word in the Illumina/Grail saga: In today’s judgment, it sets aside the judgment of the General Court and annuls the decision by which the Commission accepted requests from national competition authorities asking the Commission to examine the Illumina/Grail merger. According to the ECJ, the Commission is not authorized to encourage or accept referrals from national competition authorities of concentrations that do not have an EU dimension and that the national competition authorities are not competent to review under their own national law.   Background in brief: ♟️US-based global genomics company Illumina announced its plans to acquire Grail, a US company developing blood tests for the early detection of cancer, in September 2020. ♟️Following the French Competition Authority’s referral request under Article 22 EUMR, the Commission examined and prohibited the merger – even though the transaction had no EU dimension and failed to reach any relevant national thresholds. ♟️Illumina challenged the decision arguing that the Commission lacked jurisdiction to review the deal. The General Court dismissed the action in July 2022, which led to Illumina and Grail each lodging an appeal against that judgment. ♟️Advocate General Emiliou said in a non-binding opinion in March 2024 that the General Court had erred in its interpretation and application of Article 22 EUMR. Today, the ECJ agreed.   #meetingcompetition #Art22finalpart #EUcaselaw #competitionlaw

During my secondment at Atsumi & Sakai in Japan 🗾, I had the great honour of giving an online seminar at the monthly meeting of the Japanese Competition Law Forum and discussing the filing requirements for M&A transactions in Germany with Japanese competition lawyers, in-house counsel, and members of the Japanese competition authority. Many thanks to Setsuko Yufu for arranging this unique opportunity and to saori Kato (Hanada) for moderating the discussion!   #JCLF #mergercontrol #FDI #FSR #meetingcompetition