Competition Law Update: Autumn 2015
Published on 4th Nov 2015
Welcome to the latest edition of Osborne Clarke’s Competition Law Update.
This has been another busy quarter in the world of competition law, with a particular focus on e-commerce. The European Commission’s Digital Single Market initiative continues to gather momentum, while multiple competition authorities target online sales restrictions. Resale price maintenance is also high on the agenda – and telcos wait nervously following the abandonment of the Danish TeliaSonera/Telenor merger in the face of opposition from the European Commission. We explore all these topics and more below, with links to detailed analysis.
Continued crack down on resale price maintenance
National competition authorities continue to impose fines against manufacturers that attempt to dictate the resale price of their products.
In two cases, the fines (unusually) also extend to retailers for their part in co-ordination of the retail price. This reflects the active participation of these retailers in the retail price maintenance activity. A trade association has also recently been sanctioned for circulating pricing recommendations between its members.
The cases highlight that companies and organisations (including retailers and trade associations) engaging in resale price maintenance activity can continue to expect active enforcement and sanctions from national competition authorities.
Platforms under the spotlight: recent cases and a new in-depth “assessment”
The competition focus on “platforms” as gateways for many consumers and businesses continues. We have seen competition authorities target the conduct of platforms – and the European Commission launch its “assessment” of platforms as part of the Digital Single Market initiative. Key questions, not least “what is a ‘platform’?” remain unanswered, but this Commission assessment offers the opportunity to influence the answers.
Read more on the consultation.
Read more recent reports on platform-related cases.
Online sales restrictions: latest developments
Restrictions of online sales, in any form, are high on the list of enforcement priorities for the European Commission and national competition authorities. The flood of cases experienced over the last two years has continued and the launch of the Commission’s Digital Single Market project has sharpened this focus.
Read more about the Digital Single Market on our hub.
Consolidation in the telco market: where now?
It is now well known that TeliaSonera and Telenor abandoned their proposed joint venture in the face of opposition from the European Commission (read more). Interestingly for us commentators, by stepping away from the Commission process, TeliaSonera and Telenor denied Margrethe Vestager, the EU Competition Commissioner, the opportunity to rule on the application of merger control to telecoms markets in Europe – markets that have followed a trend towards consolidation in recent years. Although this has not stopped Ms Vestager from expressing her views… In a speech at the Fordham University annual conference on 2 October 2015, Ms Vestager provided her thoughts on some of the key themes around telco mergers, giving clues as to how the Commission might assess these transactions under her governance.
Managing distribution and anti-trust compliance in the European Union
This article from Cologne partner Thomas Funke for the American Bar Association outlines the issues that North American manufacturers most typically face when devising their distribution strategy for the European Union, as these will almost always require the manufacturer to adapt its international model distribution contract in several ways.
The rise of private actions for damages for breaches of competition law
The European Union has launched a new statutory framework with the aim of giving greater opportunities for effective redress for victims of cartels, abuses of dominance and unlawful vertical restraints. The development increases competition compliance risk for businesses, as Thomas Funke writes in GCR’s ‘Getting The Deal Through – Private Antitrust Litigation’.
The UK has also introduced enhanced rights to sue as a result of anti-competitive behaviour. Read more on our OC Regulatory blog.
Cartel damages claims: Court of Appeal curbs disclosure in follow-on claims
Cartels are by their nature secret, presenting a challenge to those wishing to bring cartel damages claims in proving the extent of their losses. The English courts have traditionally taken a robust approach to disclosure, including ordering disclosure of unredacted European Commission decisions – making England a popular forum for actions against cartels. Following the recent Court of Appeal decision in the Air Cargo case, where are we now on disclosure in cartel damages cases?
Developments in big data and competition law
The impact of big data on competition is a hot topic across Europe at the moment. In the latest update from OC’s competition and data experts, we consider recent speeches from the European Commission and UK Competition and Markets Authority on the question “Should competition authorities be considering big data?”.
