Competition Law Update | October 2016

Here is this month’s Competition Law Update.

The focus on vertical restraints of competition continues to grow across Europe, driven by the rise of the digital economy.  This has been highlighted most clearly by the European Commission’s preliminary findings  in the e-commerce sector inquiry, which argued that the growth of internet sales has led to an increase in vertical restraints and to more manufacturers using selective distribution.  The Commission’s findings also suggest that we can expect further investigations in this area; however, they also provide some useful acknowledgements around the challenges of the e-commerce market and insight into the competition analysis that might apply.

An area of vertical restraints that has received a lot of attention is the use of hotel rate parity clauses. We consider whether a recent survey by the Commission and ten Member States will offer some clarity on the legal position in Europe (read more here).

However, competition law hasn’t been monopolised by vertical restraints. We have also seen a significant fine for abuse of dominance (read more here) and confirmation that the Commission can rely on illegally obtained telephone evidence in competition investigations (read more here).

At a national level, the Italian authority continues to reward companies with compliance programs (read more here), the Belgian authority reminds SMEs that they are not exempt from competition law (read more here) and the UK Financial Conduct Authority considers the competition implications of “Big Data” (read more here).

To discuss any of these developments and the implications for your business, please contact one of our experts.

Competition authorities across the EU launch a survey on “parity clauses” in the hotel booking platforms sector

Rate parity clauses continue to attract regulatory attention across the EU.  2016 has seen investigations ongoing in multiple Member States, often with divergent approaches: Germany banning ‘most favoured nation’ clauses (read more here) and France and Italy seeking to legislate on the issue (read more here).

To assess the impact across the EU and perhaps reach a common position, the European Commission and the competition authorities of ten Member States conducted a survey, which closed in August 2016.  Alexandre Glatz explores the latest developments here.

E-commerce sector inquiry: Commission sets out its preliminary findings

Over 15 months since it first launched its competition inquiry into e-commerce, a flagship part of the Digital Single Market (DSM) initiative, the Commission has now released its preliminary findings. So, what has it found and what are the implications for e-commerce players?

We discuss these questions here.

Infrastructure controller fined €6 million for breach of competition law by the European Commission

On 20 September 2016, the European Commission imposed a fine of €6 million on an Austrian waste management business for refusing access to its infrastructure, in breach of EU competition law.

This decision demonstrates that European competition authorities actively target anti-competitive behaviour across all markets and sectors, including those which may perhaps be perceived as less glamorous. It also provides a warning to all businesses with control over important infrastructure that they must be careful about the way in which they control or limit access to existing or potential competitors.

Marc Shrimpling considers this decision here.

Insurance Big Data: FCA decides not to launch study, but warns of concerns

On 21 September 2016, the Financial Conduct Authority announced that it will not be launching a market study into the use of Big Data in retail general insurance.

Although this is encouraging for businesses in this sector, the FCA’s focus on Big Data – and the wider concerns it has raised – reflect a growing focus on data and competition across the EU.  Zoe Hare considers the implications of this decision here.

The General Court of the European Union admits illegally obtained phone records in antitrust investigations

On 8 September 2016, the General Court ruled that telephone recordings illegally obtained by a company and seized by the European Commission in the normal course of its investigations could be used as evidence against the defendants to an antitrust litigation – despite the fact that French law would prohibit this.

This decision highlights the sovereignty of European law in Commission investigations, regardless of where they take place. Alexandre Glatz explores the significance of this and what we can expect in the future here.

The Italian Antitrust Authority’s spotlight on antitrust compliance programmes: The ‘Vending’ case

Following the adoption of new guidelines on fines in 2014, the Italian Antitrust Authority now offers a reduction in fines of up to 15% when the company under investigation operates an effective compliance program.  As the cases develop, it is clear that the IAA is keen to reward those companies who have taken steps to avoid competition law breaches by their employees – and penalise those who haven’t.

Enrico Fabrizi explores the practical implications of recent cases here.

The BMA’s competition law guide for SMEs

On 20 July 2016, the Belgian national competition authority published a guide on competition law with a specific focus on how it applies to SMEs. The guide not only outlines general rules of competition law, but also explains the consequences of infringement and the importance of having competition law compliance programmes.

Yves Stans considers the contents and application of the guide here.

Does the Digital Single Market mean the end of geo-blocking in Europe?

On 25 May 2016, the European Commission published its proposed regulation on geo-blocking and other forms of geographical discrimination within the Single Market. The regulation has been one of the most controversial elements of the European Commission’s Digital Single Market strategy, but how far does it really go in limiting the use of geo-blocking in Europe?

Katherine Kirrage discusses this question in an article for Practical Law, which can be downloaded here.