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Category Archives: Antitrust, Competition & Economic Regulation

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Court Upholds DOJ Antitrust Lawsuit Challenging Carolinas HealthCare System’s Anti-Steering Provisions

Despite a recent decision by the Second Circuit suggesting that anti-steering contractual provisions in other industries may not be anticompetitive, DOJ’s lawsuit (United States v. Carolinas HealthCare System) against Carolinas HealthCare System’s (CHS’s) contracting practices continues forward after surviving a motion for judgment on the pleadings.

Germany suggests ramping up regulation of Digital Platforms by establishing a “Digital Agency” with a robust antitrust mandate

Will Germany establish a “Digital Agency” to monitor compliance with competition law rules in digital markets? Will a German “Digital Antitrust Enforcer” become a role model for a European protectionist approach against American and Asian platform providers?

The German Federal Ministry for Economic Affairs and Energy seems to see a pressing need for regulation in digital markets. The White Paper “Digital Platforms”, published on the 20 March 2017, provides an outlook on possible forms of digital regulatory policy in Germany and potentially also in Europe. Of particular interest from a competition law perspective is the proposal to establish a new “Digital Agency”.

Outlook for Disgorgement Remedies in the Trump Administration

With the departure of now former Chairwoman Edith Ramirez earlier this month, among the most discussed vacancies in the new administration these days is the post of permanent Chair of the Federal Trade Commission. According to reports, one leading candidates is Acting Chairman Maureen Ohlhausen, and her selection could also have significant implications for FTC

Regulate Frankenstein: the European Parliament calls for new rules for robots

When a parliamentary report cites Mary Shelley’s Frankenstein in its recitals and proposes new regulation for robots with artificial intelligence (“AI”), one cannot be sure whether the 19th or the 21st century has inspired the legislator. Last week, the European Parliament took a step to introduce new regulation of robots in Europe. Declaring that the

A Bigger Carrot: Commission Official Signals Availability of Larger Fine Discounts For Cooperation in Abuse Cases

In September 2016, the European Commission granted a 30% fine discount to Altstoff Recycling Austria for cooperating with an investigation into its alleged abuse of a dominant position in the Austria waste management market (see our previous post here). The discount was granted on the basis of Paragraph 37 of the 2006 Fining guidelines, which allows

FTC Issues Sharing Economy Report

In June 2015, the Federal Trade Commission (FTC) held a workshop on The “Sharing” Economy: Issues Facing Platforms, Participants, and Regulators. The Commission also solicited public comments on the topic, receiving more than 2,000 comments in response. On 17 November, the Commission issued a report summarizing the issues explored in the workshop and the public comments. The report emphasized that the workshop (and its ensuing summary) was not intended “as a precursor to law enforcement” but “an opportunity to learn more” about this rapidly evolving business model and to aid “the Commission, as well as regulators, consumer groups, platforms, participants using the platforms, incumbent firms, and others” to address the unique issues raised by sharing economy platforms.

Fragmentation instead of level-playing field? How the German Government’s announced White Paper on digital platforms adds to regulatory uncertainty on topical issues of the digital economy after Brexit

Many digital platforms attract consumers and businesses on a global basis. It is a challenge for national regulators to enforce competition law and other regulatory provisions against such international players. Germany´s Federal Minister of Justice, Heiko Maas, argued in a similar way in an interview with the German newspaper Handelsblatt on 5 October 2016.

WITH A CARROT AND A STICK: FINE DISCOUNTS FOR COOPERATION RETURN TO ABUSE ENFORCEMENT

On 20 September 2016, the European Commission fined Altstoff Recycling Austria (“ARA”) under Article 102 TFEU for abusing its dominant position in the Austrian waste management market by blocking its downstream competitors from reasonable access to its necessary upstream infrastructure. What’s unique in this case is that the EC granted ARA a 30% discount for

Antitrust Liability for Anti-competitive Behaviour by Employees and Contractors

Liability for anti-competitive behaviour by your employees and outside contractors: when you are off the hook and when you are not In its recent VM Remonts judgment, the Court of Justice of the EU has confirmed the strict liability of companies for the anti-competitive behaviour of their employees, even if the employee was acting contrary to

Cartel damages 2.0 in Germany – the draft bill has arrived

After the implementation of the new EU Directive on antitrust damages actions into German law it will be much easier for cartel victims to pursue their claims. The position of indirect customers of cartelized products or services will be strengthened, the limitation period will be extended and most of all the German legal system will see the implementation of a German version of disclosure.

When an information exchange among competitors is not illegal: the Italian TV services case

The Italian administrative tribunal of Lazio region (tribunale amministrativo regionale del Lazio, “TAR”), the sole responsible court for the appeal of the Italian Competition Authority (“ICA”) decisions, has recently provided detailed clarification regarding when information exchange between competitors is not illegal.  In a series of judgments regarding the TV post-production services case, the TAR overturned

Green Book regarding the Amendment of German Competition Law and FCO Paper on “Market Power of Platforms and Networks”: Preparing Competition Law for Digital Markets

The Green Book for digital platforms recommends changes to the German Act against Restraints of Competition. In particular, thresholds for merger control proceedings shall be adapted so that even companies with small turnover figures would be subject to German merger control as long as a certain transaction value will be met. Furthermore, even though a platform use is free it can still constitute a market under competition law terms.

De-Regulating the Sharing Economy: European Commission Publishes Guidelines to Promote National Harmonization

Back in October 2015, as part of its Single Market Strategy, the European Commission declared that it would develop an agenda to encourage consumers, businesses and public authorities to engage confidently in the sharing economy (also known as the “collaborative economy”), where private individuals provide on-demand services to other people, without intermediaries. This peer-to-peer model

Antitrust in WeChat times

This post was contributed by Qing Lyu. WeChat is a very popular messaging app in China, similar to WhatsApp and Facebook Messaging in other parts of the world. It has social networking, gaming, e-commerce and mobile payment functionalities.  The app plays an increasingly important role in social – and business – interactions in China.  As

Advocate General at the CJEU emphasizes the importance of competition law arguments in international arbitration (Opinion of AG Wathelet in Case C-567/14)

On 17 March 2016, Advocate General Wathelet at the Court of Justice of the European Union (CJEU) delivered his Opinion in Case C-567/14 (Genentech) emphasizing the importance of competition law arguments in annulment proceedings of arbitral awards and calling the French standard of review of arbitral awards “contrary to the principle of effectiveness of EU law”.

German Federal Government intends a strengthening of merger control for the sale of start-ups

In June 2015 Microsoft paid between EUR 100-200 million for the relatively unknown “6Wunderkinder GmbH” – a company which generates its revenue primarily through the operation of “Wunderlist”, a to-do list app. This acquisition is an example of the current practice of start-up acquisitions by estab-lished “big players”. Due to their low turnover, companies like 6Wunderkinder are not subject to German merger control. The “2016 Annual Economic Report” shows that the Federal Government wants to introduce an additional threshold within the scope of the 9th amendment to ARC (German: GWB).

Belgian endives on the frontline for price fixing by farmers

Belgian endives are a divisive vegetable: their bitterness delights some but repulses others. And even amongst Belgian endive enthusiast you’ll find some that prefer them raw – to maintain their crispness – while others like them cooked so that their bitterness comes out even more. But Belgian endives are no longer the exclusive battleground of

Cartel facilitators can face hefty EU fines – what are the implications for consultancies, market research organisations, brokers and other intermediaries?

The European Court of Justice (ECJ) has confirmed that the conduct of a consultancy firm can be caught by the EU prohibition of agreements or concerted practices restricting competition (Article 101 of the Treaty of the Functioning of the European Union (TFEU)), even where that firm is not active on the cartelized market but where

Chinese regulator fines company for non-cooperation in antitrust investigation

On 13 October 2015, the Administration for Industry and Commerce (AIC) in Anhui Province announced that it has imposed a fine of RMB 200,000 (around USD 31,500; EUR 28,500) on Sunyard System Engineering Co., Ltd. (Sunyard), for the latter’s failure to cooperate in an antitrust investigation. The Anhui AIC published the decision on its website,