• China’s antitrust regulator is starting to pay attention to the competition situation in the domestic online payment sector after having recently received complaints about two major players in the market, according to two people familiar with the matter.

    Alipay and Tenpay, operated respectively by the financial branches of China’s internet giants Alibaba Group and Tencent, have been the subject of complaints to the State Administration for Market Regulation (SAMR) for allegedly having abused their dominance in the online payment sector.

    The alleged oligopolies, which are said to hold a large market share, are accused of charging unfair transaction fees and excluding competitors, among other complaints.

     

    PaRR subscribers can read the full article on PaRR here.

     

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    A European Commission (EC) proposal to subject acquisitions backed by foreign subsidies to regulatory scrutiny would aim to be swift and coordinated with any parallel merger review, the author of the proposal said today (15 July).

    On 17 June, the EC adopted a white paper focusing on “levelling the playing field” on foreign subsidies, proposing an ex-post regime for scrutinising foreign subsidies of enterprises operating in the EU together with a new ex-ante tool for reviewing acquisitions by state-backed enterprises, as reported.

    In relation to the ex-ante tool, Eddy de Smijter, head of the International Relations Unit at the EC’s Directorate General for Competition, said that the Commission needs “to act swiftly” on foreign subsidy reviews, given that they may run in parallel with the competition review of a merger.

    PaRR subscribers can read the full article on PaRR here.

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  • Competition authorities should look at data collection and access to data in merger control review and not focus so squarely on market definition, said the head of France’s competition agency today (8 July).

    Agencies need to look at how data will be used by the merged parties when conducting antitrust reviews, said Isabelle de Silva, president of the Autorité de la Concurrence, during a Concurrences event today with Bundeskartellamt president Andreas Mundt and Federal Trade Commission (FTC) member Rohit Chopra.

    De Silva said that agencies need to better take data collection into account and “look beyond market definition” in future reviews. She said that there is room for improvement in terms of how agencies look at data collection and exploitation in merger control.

    PaRR subscribers can read the full article on PaRR here.

     

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    The European Commission (EC) is currently consulting on the special responsibilities for gatekeeper platforms but has found the term "gatekeeper" tricky to define, European Commission (EC) Executive Vice President (EVP) Margrethe Vestager said during a hearing with the European Parliament today (23 June).

    "We are consulting now on what should be the special responsibility of platforms that play a role as gatekeeper," said Vestager, speaking to MEPs on the EP’s legal affairs committee, referring to the launch this month of a consultation on a Digital Services Act, including on the 'gatekeeper' role of a few large online platforms.

    The consultation envisages creating a type of regulatory framework for larger gatekeeper platforms.

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  • The European Commission’s (EC) 2018 decision fining global chipmaker Qualcomm EUR 997m for abusing its market dominance in LTE baseband chipsets was published today (8 June).

    Following an ex-officio investigation launched in 2014, EC officials found that Qualcomm prevented rivals from competing in the market by making significant payments to Apple on the condition it would not buy from rival chipmakers.

    Baseband chipsets enable smartphones and tablets to connect to cellular networks and are used both for voice and data transmission.

    PaRR subscribers can read the full article on PaRR here.

     

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    The COVID-19 pandemic has bolstered the market power of online platforms and caused an economic crisis necessitating cooperation to re-establish supply chains, the president of Germany’s competition authority Andreas Mundt told PaRR in an interview.

    The president of the Bundeskartellamt (Bkarta) pointed to several challenges that the COVID-19 pandemic has posed to the agency, noting that the acceleration of digitisation, complaints by third-party dealers against Amazon and the need to allow certain types of horizontal cooperation.

    PaRR subscribers can read the full article on PaRR here.

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  • - Opponents see no efficiency increases, bad court record

    - Agency director-general sees clear efficiency benefits

    - Proposal for implementing ECN+ directive expected later in summer

     

     

    A government proposal to grant Sweden’s Konkurrensverket the power to take antitrust fining decisions instead of going to court has met with polarised opinions.

     

    The government’s justification for the proposal, put to consultation in March as part of reform required for the ECN+ Directive, was two-fold: it would ensure harmonisation with other EU jurisdictions and allow for greater investigative efficiency.

     

    PaRR subscribers can read the full article on PaRR here.

     

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    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.

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  • 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.

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    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.
     

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  • 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.

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    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.

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  • 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.

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    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.

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  • 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.

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    • 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.
     
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    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.
     
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  • 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.

     

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    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.

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  • 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.
     
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    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.

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  • 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.

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    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.

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  • 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.

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    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.

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  • 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%.

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    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.

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