EU, UK, NL, IT, PL Competition & Trade News

Monday, December 14, 2020

The Netherlands

A. T-Cell Netherlands Could Purchase Simpel.

On Nov. 17, 2020, the Netherlands Authority for Customers and Markets (ACM) cleared the acquisition of telecom operator Simpel by rival operator T-Cell Netherlands (T-Cell). Over its mounted and cellular networks, T-Cell presents customers numerous companies, comparable to telephony, broadband entry, and tv. Simpel sells mobile-telecom companies, comparable to sim-only plans for cell phones. For its mobile-telecom companies, Simpel makes use of T-Cell’s community, as do a number of different operators.

ACM’s investigation has proven that this acquisition doesn’t create any anticompetitive considerations, because it is not going to have a big impression on the aggressive panorama out there for mobile-telecom companies. The investigation has additionally proven that, after the acquisition, T-Cell will proceed to face ample competitors from telecom operators KPN, VodafoneZiggo, and numerous telecom operators with out networks of their very own.

ACM has additionally assessed whether or not, after the acquisition, telecom operators with cellular networks of their very own will proceed to have the motivation to supply entry to telecom operators with out networks of their very own. ACM’s investigation has proven that, after the acquisition, telecom operators with their very own networks proceed to have ample incentives to supply wholesale entry to their networks. This acquisition of an operator with out a its personal community by an operator with its personal community hardly adjustments this.

United Kingdom

A. UK Competitors Legislation Publish-Brexit

EU regulation will stop to use within the UK on Jan. 1, 2021.1 On the time of writing this article, there’s nonetheless no settlement between the EU and UK on the phrases of their future relationship. Nevertheless, it’s clear that, beginning on Jan. 1, 2021, the UK competitors regime will function individually from the EU competitors regime, with the next impacts on companies.

1. Mergers and acquisitions.

The one-stop store created by the EU Merger Regulation (EUMR), offering a single merger clearance determination for the entire of the EU, will not apply within the UK. Companies considering mergers affecting the UK and qualifying for investigation beneath each the EUMR and the UK Enterprise Act must put together for the potential of parallel UK and EU merger investigations. The one exception would be the few circumstances the place the European Fee has already began to research a merger that additionally certified for investigation beneath the UK regime. In these circumstances, the UK Competitors and Markets Authority (CMA) is not going to begin an investigation. As an alternative, the Fee will proceed with its investigation of the UK in addition to EU impression of the merger, and its determination, even when issued after Dec. 31, 2020, will probably be binding in relation to the UK in addition to in relation to the remaining 27 EU Member States. Within the meantime, the CMA has printed proposals to replace its jurisdictional steering for 2021.

2. Agreements.

Agreements that have an effect on commerce and competitors within the UK in addition to within the EU will not be topic to EU competitors regulation so far as their UK impression is worried – solely UK competitors regulation will apply. In apply, no less than initially, Brexit is unlikely to vary considerably the premise on which most of these agreements are analyzed for competitors regulation compliance, because the ideas that underpin each EU and UK guidelines referring to anti-competitive agreements are comparable. Consequently, the drafting of those agreements mustn’t want to vary essentially. Nevertheless, in the long run, the 2 regimes could diverge.

3. Companies with market energy.

The phrases on which corporations with market energy do enterprise within the UK will probably be topic to UK competitors guidelines referring to abuse of market dominance. The place these corporations additionally function within the EU, the EU guidelines on market dominance will apply. Right here too, the UK and EU ideas are comparable, and there’s unlikely to be a basic change in evaluation between the 2 separate jurisdictions initially, with the potential of divergence in the long run.

4. Investigations of agreements and conduct.

Companies working anti-competitive agreements, or abusing a place of market dominance, within the UK could also be investigated by the CMA. There’s a danger of parallel UK/EU investigations the place the settlement or abusive conduct in query impacts on competitors and commerce in each the UK (investigation by the CMA) and the EU (investigation by the European Fee). Nevertheless, from Jan. 1, 2021, the Fee is not going to have jurisdiction to conduct “daybreak raids” at these companies’ UK premises.

5. State help.

From Jan. 1, 2021, the UK will not be topic to the EU guidelines on state help. The UK authorities has developed proposals for the UK’s personal state help regime, however these could not develop into regulation till later in 2021.

B. Nationwide Safety and Overseas Funding

On Nov. 12, 2020, the UK printed proposals for a considerably stricter and extra complete system for controlling transactions and acquisitions of property which have the potential to impression on UK nationwide safety. These proposals embody necessary submitting and clearance upfront of finishing a transaction that falls inside its scope. The session on these proposals ends on Jan. 6, 2021.

Poland

A. Potential impression of latest Nord Stream 2 determination on UOKiK overview of joint ventures.

In November 2020, we reported that the president of the Polish Competitors Authority (UOKiK) imposed a record-breaking tremendous of over PLN 29 billion (approx. EUR 6,5 billion, USD 7.6 billion) on Gazprom (the Russian gasoline large), and over PLN 234 million (approx. EUR 51 million or USD 61 billion) in complete, on 5 different entities concerned within the development of the Nord Stream 2 gasoline pipeline with out UOKiK merger clearance. In November, the total textual content of UOKiK’s determination was printed. The choice sheds gentle on UOKiK’s reasoning within the case and supplies pointers on how UOKiK could doubtlessly take into account comparable circumstances sooner or later.

In keeping with the Polish Act on Competitors and Shopper Safety (Competitors Act) the creation of a joint entrepreneur by different entrepreneurs is topic to merger management notification (if the related turnover thresholds are met). Up to now, in apply, the creation of a joint entrepreneur has been usually related to the acquisition of shares in such entrepreneur. Within the Nord Stream 2 case, the events argued {that a} shareholding participation is critical with the intention to set up the creation of a joint entrepreneur. The events, nonetheless, didn’t purchase shares within the new entrepreneur however as an alternative signed agreements for the financing of the pipeline with such entrepreneur. In keeping with UOKiK, such motion constitutes circumvention of the merger clearance obligation as a result of, particularly:

no matter whether or not the events acquired shares within the firm or signed the financing agreements, the events have the identical widespread enterprise aim: financing the development of the pipeline;

every of the events took an financial danger, as they doubtlessly may lose the funds that they lent.

UOKiK additionally said that the events had secured the financing agreements with an choice to convert the mortgage into shares within the firm. Lastly, in line with UOKiK, regardless of the events deciding to vary the type of cooperation (from the acquisition of shares within the new firm to cooperation on the premise of financing agreements), a joint entrepreneur was created. Such reasoning could impression how UOKiK considers contractual joint ventures, i.e., cooperation between entrepreneurs with out the creation of a separate firm wherein the events maintain shares.

B. UOKiK’s latest actions within the area of anticompetitive agreements.

In November 2020, UOKiK introduced that it had launched explanatory proceedings with the intention to examine whether or not pharmaceutical wholesalers change industrial information, together with data on costs. In keeping with UOKiK’s data, this may very well be achieved by particular software program utilized by wholesalers that enables them to test the costs utilized by their opponents. UOKiK carried out daybreak raids on the wholesalers’ premises and the software program suppliers. UOKiK will examine whether or not the software program may have been used for the aim of an anticompetitive settlement.

Earlier in November, UOKiK introduced it had fined Yamaha Music Europe for resale value upkeep. The tremendous appears low (approx. PLN 0.5 million, which is approx. EUR 113 000 or USD 139 000), considering that the infringement lasted for 13 years. UOKiK indicated, nonetheless, that the tremendous would have been considerably larger, however Yamaha cooperated with UOKiK inside the leniency program and voluntarily submitted to the penalty.

C. Interchange price saga continues: 14 years after the UOKiK determination was issued, the case returns to the Courtroom of First Occasion.

On Nov. 21, 2020, the Courtroom of Attraction delivered a ruling repealing the judgment of the District Courtroom of Competitors and Shopper Safety (SOKiK) and referring the case again to that court docket (Courtroom of First Occasion). The Courtroom of Attraction’s judgment considerations UOKiK’s unprecedented determination issued in December 2006 towards 20 banks for concluding an anticompetitive settlement pertaining to setting charges for transactions carried out utilizing Visa and Mastercard fee playing cards. On account of the choice, a PLN 164 million tremendous was imposed on the banks. Since UOKiK issued the choice, the case has gone by all situations of the Polish judicial system (together with the Supreme Courtroom) – some situations a number of instances.

Within the oral justification of its judgment, the Courtroom of Attraction reiterated the Supreme Courtroom’s Feb. 6, 2019, place (no. III SK 38/16) that the settlement in query doesn’t limit competitors by its very nature and subsequently its results ought to have been completely analyzed. SOKiK might want to take into account each the anticompetitive and the procompetitive results of the settlement, making an allowance for these results can seem both horizontally or vertically, or each, as in comparison with the related market of the settlement. It has been emphasised by the Courtroom of Attraction that the motions to allow proof for the exemption of the involved settlement from the legal guidelines prohibiting unlawful agreements have been rejected unjustifiably and have to be reconsidered. Additionally, because of possession adjustments that befell with respect to sure banks, SOKiK ought to determine which entity is liable beneath the possibly anticompetitive settlement.

Italy

A. Italian Competitors Authority (ICA)

1. ICA opens investigation into ANIA.

On Nov. 16, 2020, the ICA opened an investigation into the Nationwide Affiliation of Insurance coverage Corporations (ANIA). The investigation stems from a communication despatched by ANIA to the ICA regarding an “anti-fraud mission” within the life (pure danger) and non-life sectors; the communication supplies, amongst different issues, for the creation of databases and the event of widespread algorithms to find out fraud danger indicators that insurance coverage corporations may use in each the liquidation and hiring phases.

The ICA considers that, as at the moment designed, ANIA’s “anti-fraud mission” presents various crucial competitors points. Particularly, the preliminary evaluation confirmed the danger that – because the mission is developed by an affiliation representing the pursuits of insurance coverage corporations – there are inadequate ensures from third events such that the anti-fraud exercise can truly be carried out for the good thing about all stakeholders. ICA may also assess whether or not and to what extent the change of knowledge inherent within the mission and helpful to its success may trigger a man-made improve in transparency within the markets involved, facilitating collusion between opponents. With regard to this subject, the event of widespread algorithms and the sharing of a considerable amount of information may affect and standardize the alternatives of corporations in vital phases of the insurance coverage enterprise.

2. The ICA fines the consortium Corepla for abuse of dominant place.

Particularly, the ICA discovered that Corepla carried out a structured technique with a view to hampering its competitor Coripet, a consortium involving the producers of plastic bottles for meals liquids, previously belonging to Corepla. Coripet was approved in 2018 by the Italian Ministry of the Atmosphere to take part in an progressive mission for pet bottle restoration and recycling. The ICA’s investigation revealed that Corepla used abusive techniques with the intention to stop Coripet from executing the aforesaid mission, thus distorting competitors, impeding innovation within the companies associated to restoration and recycling of pet bottles for meals use, and hindering the aggressive dynamics offered for by the Consolidated Environmental Legislation. Earlier than issuing the 27 million euros tremendous, the ICA adopted interim measures for the well timed elimination of Corepla’s unique claims on supplies derived from city waste sorting.On Nov. 10, 2020, the ICA printed its determination fining the plastic provide chain consortium Corepla for having abused of its dominant place on the Italian marketplace for companies aimed on the recycling and restoration of PET bottles for meals use. The bottles are supplied to producers to adjust to related environmental obligations.

3. ICA opens investigation into Benetton for abuse of financial dominance.

On Nov. 25, 2020, the ICA opened an investigation towards Benetton, a number one participant within the clothes market, referring to an alleged abuse of financial dependence towards a franchisee. In Italy, the ICA can open investigations into companies that abuse bargaining energy with respect to different companies which might be positioned in a state of affairs of financial dependence.

In keeping with the ICA, the franchisee was economically depending on Benetton as a result of the previous was contractually obliged to determine an organizational construction tailor-made to the franchisor’s wants. Subsequently, the franchisee’s skill to reconvert its enterprise or swap to different industrial companions was considerably hindered. Subsequently, the ICA discovered that sure clauses of the franchising settlement enabled Benetton to find out the acquisition orders, with regard to each portions and timing, thus influencing the exercise of the franchisee, which was de facto unable to train its enterprise autonomously.

Given Benetton’s main place within the clothes market, the ICA thought-about that the difficulty impacts competitors within the market relatively than simply the precise contractual relationship. On this respect, the ICA confused that using comparable contractual preparations by an operator managing a big franchising community could have an effect on all of the undertakings that are a part of such community, to the detriment of competitors within the related market.

European Union

A. European Fee

The European Fee (the Fee) has lately taken a big step in the direction of revising Vertical Block Exemption Rule (VBER), which supplies a secure harbor for particular forms of vertical agreements by exempting these agreements from the cartel prohibition. The revised VBER could have far-reaching implications for companies beginning in mid-2022, when it would enter into power. On Oct. 23, 2020, the Fee printed its “Inception Affect Evaluation,” offering its plans to reform the VBER along with the vertical pointers to deal with the issues recognized through the VBER analysis, which was printed Sept. 8, 2020.

B. Courtroom of Justice brings proceedings towards on-line resort reserving platforms.

On Nov. 24, 2020, the Courtroom of Justice dominated in Case C-59/19 re Wikingerhof {that a} resort utilizing the platform Reserving.com could, in precept, carry proceedings towards Reserving.com earlier than a court docket of the Member State wherein that resort is established with the intention to carry to an finish a attainable abuse of a dominant place. Regardless that the practices that are the topic of grievance are carried out inside the context of a contractual relationship, the rule of particular jurisdiction in issues referring to tort, delict, or quasi-delict laid down within the Brussels Ia Regulation is relevant to them.

C. In keeping with AG Tanchev, the CJEU ought to dismiss the enchantment introduced by the Fee towards the Normal Courtroom’s judgment within the Tercas case.

By judgment of March 19, 2019, the Normal Courtroom annulled an earlier Fee determination that held sure measures (each a monetary contribution and ensures) granted by the Italian deposit assure fund (FITD) to an Italian financial institution, Banca Tercas, have been incompatible help. Notably, the GC discovered that the measures at subject didn’t qualify as State help as a result of they didn’t entail using State assets and weren’t imputable to the State. The Fee appealed such judgment earlier than the CJEU.

In its Oct. 29, 2020, opinion, AG Tanchev dismissed the Fee’s argument that the GC set a better commonplace of proof for demonstrating {that a} measure was imputable to the State the place that measure was granted by a personal entity – comparable to FITD, a consortium of Italian banks ruled by non-public regulation – relatively than by a public enterprise. Conversely, in line with the AG, the GC merely identified that the Italian laws didn’t confer to a public entity, specifically the Italian Banking Authority (Banca d’Italia), the facility to affect the content material of the measures taken by FITD.

Moreover, the AG confused that, even when the Fee’s plea relating to the appliance of a better commonplace of proof was grounded, the enchantment ought to however be rejected. On this respect, the AG identified that the weather adduced by the Fee didn’t exhibit that the measures have been imputable to the State, particularly in gentle of the restricted position of the Financial institution of Italy within the context of the adoption of stated measures.

1 As a result of time distinction between Belgium (Brussels) and UK, the UK will actually develop into impartial of the EU’s authorized regime at 23:00 GMT on 31 December 2020.

Edoardo Gambaro, Yuji Ogiwara, Stephen M. Pepper, Gillian Sproul, Hans Urlus, Daybreak (Dan) Zhang, Filip Drgas, Simon Harms, Marta Kownacka, Shuhei Mikiya, Pietro Missanelli, Jose Abel Rivera-Pedroza, Ippei Suzuki and Rebecca Tracy Rotem contributed to this piece.