Competition Law Update | November 2016

Here is this month’s Competition Law Update.

Regulation of the digital economy continues to present challenges for European competition authorities. The European Commission is looking at whether merger control should be adapted to capture small companies with Big Data or IP, while the new Head of the French Competition Authority, Isabelle de Silva, has prioritised scrutiny of the digital economy during her term (read more here). In a significant development for the Digital Single Market initiative, the European Commission held a stakeholder conference on the preliminary results of the e-commerce sector inquiry: our international team reports on the conference here.

Outside the digital economy, the European Parliament has been looking at the regulatory environment for franchising, stating that there should be greater freedom for franchisors to control their networks (read more here). The French authority has fined most of the modelling industry – and its union – for price fixing (read more here), our Italian team looks at the implications of the end of the first antitrust class action in Italy (read more here).

This month has also seen a milestone in the development of the Fourth Railway Package, which could bring open domestic rail travel to the EU (read more here).

As she came into office, Isabelle de Silva emphasised the importance of cross-border collaboration and there is no doubt that the themes we are seeing in competition law are pan-European. For those doing business in Europe, the challenge is keeping up with the way in which competition law is applied by national authorities and the European Commission. Contact our international team to discuss the issues relevant to your business.

Could small companies with Big Data be caught by EU merger control?

On 7 October 2016, the European Commission published proposed changes to the EU merger control rules for consultation, inviting comments by 13 January 2017. The proposals involve new thresholds based on transaction value, as well as further reduction of the requirements of the simplified procedure.  The new thresholds could have significant implications for small companies holding Big Data or valuable IP. Read more here.

European Parliament says franchisors should be free to control their networks, including pricing policy

On 4 October 2016, the European Parliament published the results of a study on how the EU regulatory environment impacts franchising and how it can be improved.  The study highlights that the franchising regime in the EU is substantially underperforming, and recommends a re-engineered regulatory framework to harmonise regulation and foster increased cross-border franchising in the EU. Osborne Clarke explores the study’s recommendations here.

French Competition Authority’s new Head targets e-commerce and digital economy

On 12 October 2016, Isabelle de Silva was appointed as chairwoman of the French Competition Authority. At Parliamentary hearings prior to her appointment, Mrs de Silva took the opportunity to recognise the recent experience of competition authorities and warn that digital economy players will be subject to particular competition law scrutiny.  Reflecting the European Commission’s goals in its Digital Single Market initiative, she also stated that co-ordination of international competition authorities will be a priority. Read more about the Parliamentary hearings and her appointment here.

Implications of the end of the first antitrust class action in Italy

The first antitrust class action, brought by two consumer associations, has been watched closely in Italy.  However, it came to an end recently, before reaching trial, when the Supreme Court overturned the underlying infringement decision, causing the claimants to abandon their damages case. This case demonstrates the importance of infringement decisions – and the complex strategic decisions that claimants have to take when they are appealed.  Read more here.

One step closer to an open domestic rail passenger market in the EU

The Fourth Railway Package, which it is hoped will remove any remaining obstacles to creating the Single European Railway Area, has reached another milestone in its journey to approval and adoption. In September 2016, the European Council adopted the three market pillar proposals at the first reading. Read more about the legislative proposals and their progress here.

European Commission conference on e-commerce: what now for stakeholders?

After the preliminary results from the European Commission’s e-commerce sector inquiry were published in September, key stakeholders joined the Commission to discuss the findings. While the Commission took a neutral stance at the conference, Margrethe Vestager reminded businesses to review their existing business practices and assess whether they are complying with competition rules. Osborne Clarke explores the guidance that businesses can draw at this stage here.

The French Competition Authority fines modelling agencies and their professional union

Almost the entire French market of modelling agencies, along with their main professional union, has been subject to fines for anti-competitive behaviour. The French Competition Authority considered that indicative pricing schedules drawn up by the agencies and distributed by the professional union caused confusion over mandatory minimum wages. Osborne Clarke explores the decision and its significance here.