• The European Commission’s (EC) final report on the evaluation of the Vertical Block Exemption Regulations (VBER) and vertical guidelines has indicated grounds for the possible revision of the rules which may be out of step with market developments and business practices.

    While the online trade space in the past 10 years witnessed rapid expansion in online trade in both business to business and business to consumer level, the types of agreements covered in the VBER and guidelines have not substantially changed in their essence, the study said.

    Feedback from law firms showed that the VBER and the vertical guidelines “do not sufficiently reflect market changes, especially digital progress, and consequently their relevance and effectiveness has been gradually decreasing”.

    An increase of online sales channels puts agreements which include limitations on cross-selling, such as selective and exclusive distribution, under heightened scrutiny.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    Virgin Media and O2’s bundled fixed line and mobile services are likely to be a key focus of scrutiny when the European Commission’s (EC) carries out its investigation into the proposed merger, according to two competition lawyers following the situation.

    The GBP 31bn merger between the UK subsidiaries of Liberty Global [NASDAQ:LBTYA] and Telefonica [BME:TEF] will be notified to the EC, but may be handed down to the UK’s Competition and Markets Authority (CMA), according to the deal announcement.

    Virgin Media and O2 predominately operate in separate adjacent markets, the first lawyer said. O2 provides infrastructure to host and provide mobile coverage, while Virgin Media provides fixed-line, fibre-to-the-home (FTTH) networks to households and businesses, according to the deal announcement.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • Singapore’s recent move to finalize its data protection law amendment raised some interesting talking points, including the mandatory notification threshold for data breaches that impact 500 or more individuals. This figure, however, should not be the sole criterion for determining reportable incidents, lawyers told PaRR. 

    Meanwhile, unlike the EU's GDPR which requires entities to notify within 72 hours after “becoming aware of” a breach, it is important to note that the clock does not start until a company determines a breach is reportable … this reassures and gives room for entities to determine if a breach causes significant harm to individuals, or whether it meets the numerical reporting threshold.
     

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    EU consumer body BEUC has called on the European Commission (EC) to conduct an in-depth investigation of Alphabet's [NASDAQ:GOOGL] Google’s acquisition of Fitbit [NYSE:FIT] as the merger would strengthen the company’s dominance in online advertising and place it in an "unassailable position" in the digital health and wearables markets.

    In a brief published Wednesday (13 May) the consumer group said that the merger would be detrimental to consumers as a result of its impact on competition in a number of markets and that the EC should consider the impact Fitbit’s data and data collection capabilities would have on both horizontal and non-horizontal markets.

    In November last year, Google agreed to acquire Fitbit for USD 7.35 per share, valuing the company at USD 2.1bn. The proposed transaction requires EC approval, according to the merger agreement. Fitbit markets wearable devices that measure health and fitness data. Google primarily offers its smartphone and smartwatch operating system software to independent hardware manufacturers, unlike Fitbit that take an integrated approach to software and hardware.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • The Philippine National Bureau of Investigation (NBI) has started reviewing reported cases of alleged anticompetitive conduct during implementation of the nationwide enhanced community quarantine, as the country's effort to prevent the spread of COVID-19 is known, Undersecretary Mark Perete of the Department of Justice (DOJ) told PaRR.

    Perete, who is also the director of DOJ’s Office for Competition, said the NBI’s review is focusing on the "determination" of the anticompetitive conduct regardless of whether the behavior is covered by the Philippine Competition Act (PCA) or other relevant laws.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    The European Commission (EC) is considering a list of "do's and don'ts" as part of a possible ex ante regulation on fair conditions for digital platforms, said Margrethe Vestager, EC Executive Vice President (EVP), today (4 May).

    The EC is considering the ex ante tool in addition to several other measures in order to address the gatekeeping function of digital platforms, said Vestager, speaking to lawmakers on the European Parliament's Committee on the Internal Market and Consumer Protection.

    Vestager said that there is a need for ex ante regulation that stipulates "fair conditions on all platforms". The ex ante regulation could include possible requirements such as “a concise list of do's and don'ts”, she said.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below. 

  • Competition enforcers may want to consider violations related to data-gathering or pooling in the context of exploitative abuse rather than privacy per se, a senior European Commission (EC) official said today (29 April).

    Privacy and antitrust enforcement should not be treated in the same box, said Thomas Kramler, DG Comp’s head of unit for antitrust in ecommerce and digital economy, adding: “That doesn't mean that two cannot work hand-in-hand, that there cannot be a link between the two, but one has to link it properly."

    The EC official was referring to the German competition authority's case against Facebook which is currently under appeal at the country's Supreme Court and due for a June hearing.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    Competition enforcers may want to consider violations related to data-gathering or pooling in the context of exploitative abuse rather than privacy per se, a senior European Commission (EC) official said today (29 April).

    Privacy and antitrust enforcement should not be treated in the same box, said Thomas Kramler, DG Comp’s head of unit for antitrust in ecommerce and digital economy, adding: “That doesn't mean that two cannot work hand-in-hand, that there cannot be a link between the two, but one has to link it properly."

    The EC official was referring to the German competition authority's case against Facebook which is currently under appeal at the country's Supreme Court and due for a June hearing.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    • Privacy, antitrust law can work hand-in-hand, EC official says
    • Exploitative abuses could become more mainstream in privacy, data cases
    •  

     

    Competition enforcers may want to consider violations related to data-gathering or pooling in the context of exploitative abuse rather than privacy per se, a senior European Commission (EC) official said today (29 April).

     

    Privacy and antitrust enforcement should not be treated in the same box, said Thomas Kramler, DG Comp’s head of unit for antitrust in ecommerce and digital economy, adding: “That doesn't mean that two cannot work hand-in-hand, that there cannot be a link between the two, but one has to link it properly."

     

    The EC official was referring to the German competition authority's case against Facebook which is currently under appeal at the country's Supreme Court and due for a June hearing.

     

    Discussion since the Bundekartellamt's 2019 decision has focused on what needs to be demonstrated in order to make the link between infringement of data protection rules and antitrust, on whether it affects competition and how, the EC official said.

     

    Privacy and antitrust law should not be integrated as these “are two different things,” a Federal Trade Commission official said today (April 29) at the American Bar Association’s Virtual Antitrust Spring Meeting.


    The contemporary antitrust debate on whether the value of data – its use, protection and privacy – warrants the incorporation of privacy issues into antitrust policy made an appearance on the panel titled "Where do vertically integrated digital platforms end?" Privacy and antitrust historically have been two separate doctrines in the U.S.


    FTC Commissioner Noah Phillips said on the panel that data issues such as consumer data and health data always factor into antitrust reviews and can be seen through remedies the agencies have implemented. He pointed to firewalls separating business operations and requirements for interoperability as examples.

     
  • In its 2019 Spring Video Series, PaRR’s reporters sat down with some of the top ascending minds tackling the most importance competition policy challenges around the world. Amabelle Asuncion reflected on what she learned implementing the Philippine Competition Act in 2015 as well as the intuition gained after getting the Philippine Competition Commission off the ground the following year. 
    The US Federal Trade Commission (FTC) received a number of not “particularly persuasive” failing firm merger defenses before the coronavirus pandemic and it is likely to receive more amid the crisis, a senior agency official said.

    Speaking on the Hot Topics panel at the American Bar Association’s Virtual Antitrust Spring Meeting today (28 April), FTC Commissioner Rebecca Slaughter said the agency has not relaxed its standards or expectations when conducting merger reviews.

    When asked for comment on the FTC and Department of Justice’s draft vertical merger guidelines issued in January, Slaughter said she could not give a substantive perspective at this time as the agencies are in the middle of a comment period.
     
    PaRR subscribers can login and read the full article here.
     
    Not yet a subscriber? Apply for a free trial to read this article and more.
  • Federal Trade Commission (FTC) Commissioner Christine Wilson said today (23 April) that the agency will pursue more merger enforcement cases based on potential harms to future or nascent competition.

    Speaking during a podcast for the American Bar Association’s virtually-held Spring Meeting, Wilson cited as a signal that enforcement in these areas will be increased a 24 September speech by Bruce Hoffman, former head of the FTC’s Bureau of Competition, to the Senate Antitrust Subcommittee.

    The Commission’s 19 December complaint challenging Illumina’s [NASDAQ:ILMN] acquisition of Pacific Biosciences [NASDAQ:PACB], subsequently abandoned by the parties on 2 January, is an example of how issues traditionally associated with the Big Tech platforms can come into play in adjacent industries where technology plays an important role, Wilson said.
     
    PaRR subscribers can login and read the full article here.
     
    Not yet a subscriber? Apply for a free trial to read this article and more.

    PaRR Analytics: Increasing interim measure use stirs consequences debate

     

    • Last year’s interim measures over a third of all adopted since 2015
    • Should be used in specific cases, not go beyond conduct – lawyers
    • Shifting agency attitudes mean use of tool seen to be on the increase

     

    As the use of interim measures in antitrust cases shows a sharp increase, practitioners warn they have limitations and potential consequences for both complainants and agencies.

    PaRR subscribers can read the full article on PaRR here.

     

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.
     

  • The European Commission’s (EC) investigation into Amazon and how the platform uses data is an example for the kind of conduct antitrust enforcers might want to watch out for in the future, a senior official said today (23 April).

    “It's an example perhaps of the issue that - given the greater importance of data - might be more prevalent in platform markets in the future,” Nicholas Banasevic, head of unit for antitrust in IT, Internet and consumer electronics at the EC’s competition directorate, said.

    Banasevic, who was speaking in a personal capacity, made the remarks in response to a question on what he thinks will be the next big concern for the antitrust enforcement community. He was speaking during a videocast on a panel titled “Big Tech: Too Big To Break Up?” organised by the American Bar Association for its virtual antitrust spring meeting.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

     

    Antitrust enforcers should approach structural remedies with caution as they may not be proportionate, an official from the European Commission (EC), and former US enforcers, said today (23 April).

    “You can’t just impose a structural remedy when there are proportionate behavioural remedies that can be imposed,” said Nicholas Banasevic, head of unit for antitrust in IT, Internet and consumer electronics at the EC’s competition directorate.

    Banasevic, who was speaking in a personal capacity, made the remarks during a videocast on a panel titled “Big Tech: Too Big To Break Up?” organised by the American Bar Association for its virtual antitrust spring meeting. Former FTC chair Maureen Ohlhausen and William Kovacic, professor at George Washington University Law School and an FTC commissioner between 2006 and 2011, were speaking on the same panel.
     
    PaRR subscribers can login and read the full article here.
     
    Not yet a subscriber? Apply for a free trial to read this article and more.
  • The European Commission’s (EC) proposed amendment to its Temporary Framework (TF) to allow for recapitalisations of companies proposes limits on mergers and acquisitions and a series of binding tools to incentivise repayment by 2023, according to a draft document seen by this news service.

    On Thursday (9 April), the EC said it had proposed to broaden the scope of the TF, which has loosened EU state aid rules so as to allow member state interventions, by enabling states to provide recapitalisations to companies in need.

    The draft document allows member states to inject capital into enterprises facing solvency issues, but places structures on how member states can intervene and on how and when they are to be reimbursed. As with the other measures in the TF, member states may only grant recapitalisation measures until the end of 2020.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    The European Commission’s (EC) merger control rulebook is sufficiently flexible to allow the agency to account for substantive changes in market conditions such as those caused by the coronavirus outbreak during the course of an assessment, said a senior EC official today (7 April).

    The EU Merger Regulation (EUMR) is flexible enough to take account of unanticipated developments over the course of a review, said Josep Maria Carpi Badia, the head of the merger case support unit at DG Competition during a Concurrences online conference.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • The European Commission (EC) will issue guidelines to help member states screen foreign direct investment (FDI) to prevent foreign entities from taking over European companies in certain key sectors, EC President Ursula von der Leyen announced today (25 March).

    The EC will issue guidelines to help screen foreign direct investment and acquisitions of control or influence in sectors such as health, medical research and strategic infrastructure, she said in a video message posted on Twitter. 

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    The European Commission (EC) has issued (17 March) emergency guidance for requests for state aid due to the impact of the COVID-19 pandemic on businesses in EU states.

    In its notice, the agency outlines a series of steps by which claimants can request state aid for damages incurred because of the COVID-19 outbreak as well as commitments parties are requested to make in order to be eligible for the aid.

    The EC notice on aid comes as airlines and airports across the EU have said that they will request aid from their respective governments. On Sunday (15 March), Brussels Airlines said that it would request aid, while last Friday (13 March) its parent Lufthansa announced that it would request aid from the German government.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • The European Commission’s (EC) competition directorate is currently shortlisting sectors that will be suitable candidates for a potential inquiry, antitrust chief Margrethe Vestager said today (10 March).

    “We are indeed in the process of shortlisting sectors but that [announcement] will come later,” Vestager, who is also executive vice-president, said.

    Addressing whether sector inquiries could be used in markets where digital platforms operate and may risk tipping the market, the commissioner said, “A sector inquiry is not a very useful tool.”

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

     

    The European Court of Justice (ECJ) today (4 March) dismissed an appeal by Marine Harvest (now Mowi) against a European Commission (EC) decision fining the firm EUR 20m for jumping the gun on its takeover of rival Morpol.

    The ruling did not follow the non-binding opinion of Advocate General (AG) Evgeni Tanchev , which in September suggested that the ECJ should halve the fine on the grounds that the EC cannot impose separate fines for breaches of the merger notification requirement and the standstill obligation as they arise from the same conduct.

    In December 2012, Marine Harvest acquired a 48.5% stake in Morpol, which was listed on the Oslo Stock Exchange. Under Norwegian law, an acquirer of more than one-third of the shares in a listed company is obliged to bid for the remaining shares. As a result, Marine Harvest submitted a public offer for the rest of the company's shares, ultimately increasing its shareholding to 87.1%.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

     

     

  • Taiwan’s Fair Trade Commission (TFTC) is still looking at the proposed acquisition of Hitachi Chemical [TYO:4217] by chemical engineering firm Showa Denko [TYO:4004], according to a TFTC spokesperson, although he declined to be specific.

    “The proposed acquisition has been filed with the regulator. The case is still being ‘processed’ and has yet to be presented to the committee,” the spokesperson said, referring to the TFTC’s decision-making committee that has the final say on each deal being reviewed by the authority.

    A Showa Denko spokesperson, meanwhile, said the proposed deal already obtained approval from the Japan Fair Trade Commission (JFTC) at the end of February.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial here

    Germany’s competition agency has largely backed draft provisions of the 10th amendment of the country’s competition act, but at the same time underlined possible deficiencies in an opinion paper published today (25 February).

    Last month, the German economy ministry published its draft digital competition reform, intended to boost abuse enforcement in the digital sector, introduce interim measures and optimize merger control, among other amendments.

    The Bundeskartellamt (BKartA) has now shared its comments on the draft that mainly welcome the amendments, especially those modernizing abuse control that will facilitate enforcement against large digital platforms, according to the German-language document.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial here

  • China’s State Administration for Market Regulation (SAMR) has been looking at complaints against Apple Inc. for engaging in alleged anticompetitive conduct in patent licensing negotiations by abusing its advantageous position as the implementer of standard-essential patents (SEPs), according to two sources familiar with the matter.

    The US tech giant has been the subject of complaints about requiring excessively low royalties during patent licensing fee negotiations with certain small-and-medium-sized SEP holders, said the sources. 

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    The scope of Japan’s proposed Digital Platform Transparency Law is so narrow that it may only apply to the five largest e-commerce companies operating in the country, according to three sources who submitted public comment on the matter before the bill moves to parliament, including a researcher with an industry association. 

    “People generally sense that the law targets only five firms, Google, Apple, Rakuten, Yahoo and Amazon,” Soichi Sato, a public policy researcher for the Japan Association of New Economy (JANE), told PaRR on Wednesday (5 February).   JANE is an industry lobbying group representing some 534 firms that include information technology (IT) firms, digital content and service providers.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • The much-anticipated courtroom battle between Google and the European Commission (EC) in the Shopping antitrust case this week will see the EU General Court (EC) packed to capacity as the parties are accompanied by almost a dozen interveners armed with advisers.

    Seasoned veterans will plead the respective cases alongside juniors for whom the case could prove career defining.

    Google is contesting a 2017 EC decision which slapped the tech company with a then-record EUR 2.42bn fine for giving an illegal advantage to its own comparison shopping service in its search results while demoting those of competitors.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    France, Germany, Italy and Poland have called on the European Commission (EC) to revise its horizontal merger guidance and to clarify its plans to review the market definition notice in the coming weeks, according to a letter by ministers of the four EU member states seen by PaRR.

    The missive addressed to EC Executive Vice-President for a Digital Age Margrethe Vestager calls on the executive to adopt a work plan “in weeks” to modernise the EU’s competition toolbox to confront the challenges of digitisation and globalisation.

    The letter also calls on the EC to use its sector inquiry powers in order to “better understand how competition may be stifled in certain sectors of the European economy exposed to unfair international competition”.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

  • The Japan Fair Trade Commission has requested a budget of JPY 11.6bn (USD 106m) -- the highest on record -- for the coming fiscal year as the agency’s role in regulating the digital economy increases, a JFTC official told PaRR today (3 February).

    The Japanese parliament also commenced its budget debate today. The JFTC budget request, for the fiscal year running from April 2020 to March 2021, is up 1.4% from JPY 11.4 billion (USD 104m) for the current period.

    “This is a record high. The increase is driven by … digital measures,” Takashi Shinagawa, JFTC director of general affairs, told PaRR.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.

    The European Court of Justice (ECJ) has today (30 January) clarified criteria applicable to the characterisation of settlement agreements between a pharmaceutical patents holder and generic medicines manufacturer, in a GlaxoSmithKline (GSK) pay-for-delay reference decision.

    In February 2016, the UK Competition and Markets Authority (CMA) imposed a GBP 45m (EUR 53.21m) fine on British multinational pharmaceutical GSK and generic pharma firms Generics (UK) and its parent MerckActavisAlpharma and Xellia for delaying the entry of cheaper versions of GSK’s blockbuster paroxetine antidepressant Seroxat in the UK.

    PaRR subscribers can read the full article on PaRR here.

    Not a subscriber? PaRR delivers global intelligence on competition law. To read this article and more, apply for a free trial below.