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Antitrust in focus - March 2020

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This newsletter is our take on the antitrust developments we think are most interesting to your business. Emilio De Giorgi, head of our Italian antitrust practice, based in Milan, is our editor this month.

General

 

Consumer & Retail


Digital/TMT

 

Energy


Industrial & Manufacturing


Life Sciences

General

Antitrust authorities react to Covid-19

The Covid-19 coronavirus pandemic has had a major impact in the field of antitrust. As the disease has spread geographically, more and more antitrust authorities have responded, adapting their working methods and merger review processes and considering the implications for antitrust enforcement.

The impact to date on M&A has primarily been one of disruption and delay. Merging parties should be prepared for a slow-down in obtaining merger control approvals for deals as long as the pandemic continues. First, we are seeing a number of antitrust authorities asking parties to put off making merger notifications, especially where they are non-urgent (eg the European Commission, and authorities in France, Hungary and Ireland). Second, given challenges in conducting and completing the necessary inquiries with merger parties and other market participants, merger review deadlines are being suspended (eg Denmark, Italy and Spain) and are likely to be extended. In the U.S., for example, the Department of Justice is asking companies to add 30 days to timing agreements. In addition, many authorities are only accepting electronic filings. And with staff working from home, teleconferences and videoconferences are replacing face-to-face meetings and hearings. While all this means uncertainty for deal timetables, we don’t expect the authorities to show more lenient treatment towards mergers raising anti-competitive issues. For more information on the approach of authorities across the globe, see our global merger review update.

The impact on antitrust enforcement has been more complex. Adverse economic or social conditions have not historically tended to affect the general application and enforcement of the antitrust rules. And this remains the overall position – concerned that businesses could exploit the outbreak to take advantage of people, many authorities have expressly stated that they will continue to actively monitor business behaviour and take strict action against infringements. However, some authorities have announced that, in certain limited scenarios, they will apply exemptions from, or relaxations of, the rules. Others have offered guidance, including to particularly economically-challenged sectors. We have been closely monitoring developments: see our global application of antitrust rules overview.

In the EU, recognising the significant economic impact of the disease on the economy, the European Commission has reacted quickly and decisively in its control of State aid. It set up a Temporary Framework to support the economy in a matter of days and has gone on to rapidly approve a number of Member State support measures, some within only a day or two of notification. And it continues to assess the situation and adapt the State aid rules as the impact of the crisis becomes clear. For more on this, see our alert.

Finally, keen to protect their national strategic assets from hostile foreign takeovers, governments have started to review their foreign investment control laws and in particular the scope of the rules. The Spanish government, for example, has introduced urgent measures which restrict certain foreign direct investments in Spain – prior government authorisation is now required before such investments can be made. In Australia, relevant review thresholds have been reduced to zero. And, as for merger control, we expect foreign investment review periods to be extended for authorities to cope with the inevitable procedural challenges. Find out more in our tracker: global application of foreign investment control rules

Our report shows global merger control enforcement got tough

In early March we published our 2020 Global trends in merger control enforcement report, analysing data for 2019 from 26 jurisdictions. We found that antitrust authorities got tough on merger control. More than 40 deals were frustrated (ie prohibited or abandoned) due to antitrust concerns, with the UK Competition and Markets Authority being the standout enforcer – frustrating nearly three times as many transactions as in 2018, including high-profile deals such as Sainsbury/Asda, and referring significantly more deals to an in-depth investigation. Globally, the number of transactions subject to remedies remained high. We observed rising intervention in the TMT sector, and antitrust authorities maintained their unflinching approach to breaches of procedural rules. All of this was set against a background of dipping global M&A activity in 2019, increased attempts by certain politicians to influence merger control reviews and repeated calls for reform of the rules. Check out the full report here to find out more. The report was covered by the FT.

ECJ confirms Marine Harvest's double gun-jumping fine

EU merger rules are both mandatory and suspensory. If the relevant thresholds are met then, with only limited exceptions, merging parties are required to notify their transactions. And the suspension obligation means that the deal cannot be implemented until the European Commission has granted clearance. In late 2012, Norwegian salmon farmer Marine Harvest acquired a 48.5% stake in Morpol. In March 2013 it completed a public bid for a further 38.6%. While it had approached the Commission following the first stage of the transaction, it only formally notified the deal after the public bid. The Commission found that Marine Harvest had already acquired control of Morpol after the first stage, and therefore had breached both the obligation to notify and the suspension obligation. It imposed a fine of EUR10m for each of these infringements. Marine Harvest appealed, arguing that the two steps of the transaction should have been treated as a single concentration and that therefore an exemption from the suspension obligation for the implementation of public bids should have applied for the entire transaction, ie including the first step. It also challenged the fact that two separate fines were imposed, one for breaching the notification obligation and one for violating the suspension obligation.

The European Court of Justice (ECJ) disagreed with Marine Harvest on both counts. First, it held that as control was already acquired as a result of the first stage of the transaction, a concentration occurred at that point. The public bid was no longer necessary to achieve a change in control, therefore it could not form part of a single concentration with the first stage, and the public bid exemption could not apply. Second, the ECJ dismissed all of Marine Harvest's arguments against the imposition of two separate fines for breach of the obligation to notify and the suspension obligation. In particular, it ruled that the principle of ne bis in idem (prevention of double jeopardy) could not apply where two fines were imposed in a single decision (rather than separate, sequential decisions). It also rejected the application of the principles governing concurrent offences (which provide that where an act is caught by two provisions, only one should apply), finding that one obligation was not defined as more serious than the other, the EU merger rules provide for the possibility of two separate fines, and each obligation has its own objective. The ECJ concluded the Commission was therefore entitled to impose two separate fines. It also noted that Marine Harvest failed to show the illegality of the provision of the EU merger rules that seems to allow for the imposition of two fines. And the ECJ stressed that Marine Harvest failed to provide sufficient evidence that the Commission's fine was disproportionate as it did not apply any offsetting between the two fines.

The ruling is important in several respects. First, it gives some guidance on the stage at which parties to a series of transactions should notify the Commission. Second, it marks a rare case of the ECJ not following the advisory opinion of the Advocate General (here, the AG was of the view that only the fine for breach of the suspension obligation should have been imposed, on the basis of the principles governing concurrent offences). And finally it fits with a global trend of strict enforcement of failure to file and gun-jumping rules – for more on this, see our Global trends in merger control enforcement report, referenced above.

Consumer & Retail

Apple's distribution system in France gets caught in antitrust cross-hairs, including for abuse of economic dependency

Manufacturers frequently operate dual distribution systems under which they use both independent resellers and their own distribution channels to sell their products. A decision by the French Competition Authority (FCA) serves as a wake-up call for such networks to be antitrust-compliant. It imposed a record EUR1.1bn fine on Apple, alongside substantial fines on two of its wholesalers, for antitrust infringements relating to the distribution of Apple products (excluding the iPhone). Provisions and conduct penalised by the FCA involved restriction of intra-brand competition and resale price maintenance – including limits on the use of the Apple trademark in promotional materials issued by resellers and the operation of a price monitoring system – and the rarely-used French law concept of abuse of economic dependency. Read our alert for more on the case as well as our key takeaways. It is also worth noting that the concept of abuse of economic dependence is a tool open to other antitrust authorities, including in Italy (see our previous alert), and in Belgium (which introduced it into law last year, to come into force on 1 June 2020). It is possible that we may see it being employed more by these authorities, particularly as an instrument to combat potential exploitative behaviour arising from the Covid-19 outbreak.

Digital/TMT

European Commission provides guidance on network sharing as it conditionally clears Italian telecoms joint venture

Following a phase 1 merger review, the European Commission has conditionally cleared a joint venture (INWIT) between Italy's two largest telcos, Telecom Italia and Vodafone, which combines both parties' nationwide tower infrastructure. The Commission's press release serves up useful guidance, not just for telcos contemplating consolidation but also for those considering cooperation through the use of network sharing agreements. In this alert we review the significance – in the overall context of the impending 5G era – of the behavioural remedies that got the deal over the line and of the parties' scaled-down planned cooperation on 5G rollout to which the Commission has given the 'green light'.

Italian court overturns merger remedy imposed on abandoned Sky Italia acquisition

While a merger control filing is mandatory in Italy if certain turnover thresholds are met, parties can proceed to complete a deal once the filing has been made to the Italian Competition Authority (ICA). There is a risk in closing prior to clearance, however, as a recent case shows. Last year Sky Italia abandoned its takeover of R2, a platform which carries out vital technical and administrative activities for companies offering pay-TV services. The ICA had opened a phase 2 review of the completed deal, citing concerns that it would strengthen Sky's dominant position in the pay-TV retail service market and in the wholesale market of digital terrestrial pay-TV (DTT) broadcasting platform access services. Unconditional clearance was looking unlikely and so the parties returned part of R2 back to the seller, Mediaset. The ICA was not confident, however, that the pre-merger competitive conditions had been restored, given that Sky held on to employee contracts, tangible assets and some contracts worth over EUR10,000 as well as the sublicence of DTT. It reached a final report which prohibited Sky, for a period of three years, from acquiring exclusive broadcasting rights for audiovisual content and linear channels for internet platforms in Italy.

On appeal, an Italian court (TAR Lazio) overturned the ICA's decision. It found that the ICA made both procedural and substantive mistakes. Sky's rights of defence had been harmed when the scope of the deal considered in the final report (single contracts) failed to tally with that set out in the statement of objections (the whole of R2). Sky had not been given an opportunity to respond to new points raised in the final report, and the final report did not examine the effects of the restorative measures taken by the parties. Finally, the final report had not given due consideration to whether there was a lasting change in control – in particular the fact that the DTT sublicence did not give Sky an "exclusive" right on a specific territory and was in place for just two years. The TAR Lazio decision confirms that the very tight statutory deadlines to assess mergers are insufficient. The consequence: wrong decisions can be adopted which may distort competition, particularly considering the time it can take to obtain a decision on appeal (in this case almost one year).

Italian 28-day billing cartel shows how legitimate discussions can slip into anti-competitive behaviour

EU and Italian antitrust rules prohibit both anti-competitive agreements and so-called 'concerted practices', ie contact between firms which falls short of an agreement but results in a reduction in uncertainty as to future conduct. Findings of concerted practices are relatively rare. Recently, however, the Italian Competition Authority (ICA) has imposed fines totalling over EUR228m on four telecoms companies, finding that they engaged in an anti-competitive concerted practice which resulted in the coordination of commercial strategies. The case stemmed from new Italian legislation which required all telcos to switch from a four-weekly to monthly billing cycle. In the context of a trade association, the firms met to discuss the new rules, with the association leading lobbying activity and aiming to clarify the scope and terms of the legislation. The sector regulator also invited the firms to discuss the changes.

While genuine lobbying does not generally raise antitrust concerns, here the ICA concluded that the firms moved from legitimate discussions about the legislation to contacts which revealed future pricing intentions. The ICA found these contacts and meetings were regular, and had no agenda. The result was a coordinated price increase of 8.6% across all the firms. On its face this increase was economically rational in light of the new rules. But the ICA found that, while the firms considered alternative business strategies, they ultimately opted for a coordinated approach – this amounted to a concerted practice which eliminated all residual uncertainty as to their individual commercial strategies. According to the ICA, certain emails suggested that the telcos were aware that their interactions were problematic, for example recommending exchanging as few emails as possible, and attempting to provide benign explanations for the contacts. The fines imposed were significant, but were lower than they could have been – the ICA took into account that it had imposed interim measures on the firms in 2018, ordering them to suspend their repricing practices pending the outcome of the investigation, which resulted in prices being reduced. The case serves as an important reminder that contacts between direct competitors are viewed by antitrust authorities with suspicion, particularly where they involve pricing or commercially sensitive information about future intentions. It also warns how it is possible for legitimate behaviour to slip into potential anti-competitive conduct. And finally, the case marks the first time the ICA imposed interim measures in a restrictive practices probe. More generally, and as previously reported, we are starting to see interim measures being used more frequently by antitrust authorities, including the European Commission (see our alert on the Broadcom case), and particularly in investigations involving fast-moving markets.

Telecom Italia penalised for abusive strategy to hinder development of ultra-wideband network

The Italian Competition Authority (ICA) has fined Telecom Italia EUR116m for abuse of dominance. In particular, the ICA has concluded that the company implemented a complex anti-competitive strategy to hinder the competitive development of ultra-wideband network infrastructure investments. The story begins in 2016 when, concerned about a lack of incentive for companies to build ultra-fast broadband infrastructure in certain so-called 'white areas' – areas where private investments in innovative infrastructure would not take place without public subsidies – the Italian Government put contracts up for tender. Telecom Italia's rival, Open Fiber, won the first contract. The ICA claims that, to preserve its market power in the supply of fixed network access services and telecommunications services to end customers, Telecom Italia then obstructed Open Fiber by hindering the organisation of tenders – making unprofitable changes to its coverage plans during the tenders (a conduct described as 'regulatory gaming') and launching sham litigation aimed at delaying public bids. At the same time, Telecom Italia repriced its wholesale offers so that Open Fiber would not have reached a scale sufficient to compete in the market. All this would have resulted in a delay in the development of innovative 'fiber to the home' broadband (FTTH) in the most disadvantaged areas of Italy. The IAA also found that Telecom Italia made promotional retail offers with "excessively long" lock-in elements to final consumers and implemented a wider price-reduction strategy so that at the time Open Fiber would have completed its network the other licensed operator would not have been in a position to attract final customers and therefore they would not have requested wholesale access services from Open Fiber.

Telecom Italia's fine could have exceeded EUR380m. The ICA says Telecom Italia's conduct was particularly serious given Italy's increasingly poor FTTH coverage compared with the rest of the EU. But, by changing its conduct towards the end of the investigation, including making amendments to its promotional offers to ensure replication by rivals, Telecom Italia did manage to mitigate some of its penalty. And it successfully fought off one abuse allegation relating to how it used sensitive information on alternative operators' customers in the retail market. Given the difficulties facing the Italian economy as a result of the Covid-19 epidemic, as well as the high amount of the fine, Telecom Italia is being spared payment of the fine until 1 October 2020. Despite this, Telecom Italia considers that it was "sanctioned unduly" and plans to appeal.

Highest Dutch court annuls ACM joint dominance decision in the telecoms sector

The Trade and Industry Appeals Tribunal (CBb) – the highest Dutch administrative law court – annulled a landmark 2018 decision by the Netherlands Authority for Consumers & Markets (ACM) requiring VodafoneZiggo and KPN to grant access to their fixed networks to other providers. The ruling (likely to examined closely by other EU courts and regulators faced with similar issues) found that the ACM committed various fundamental errors in its application of the theory on joint dominance. Our alert discusses the approach taken by the CBb to the analytical framework applied by the ACM and its assessment of market power.

UK launches new digital markets taskforce to advise Government

Antitrust authorities and governments continue to grapple with how to respond to calls for antitrust rules to be adapted to better deal with fast-moving digital markets. The UK Furman Report of March 2019 has been a key contributor to this debate, making far-reaching recommendations including the creation of a new UK Digital Markets Unit with powers to, in particular, set a code of practice for companies with "strategic market status" (see our alert for more details). In the March budget, the UK Government announced it was accepting the Furman Report's recommendations. In order to consider how these can be applied in practice and to provide advice on promoting competition in digital platform markets, the Government has launched a digital markets taskforce. The taskforce will sit within the CMA and will be made up of officials from across regulators. It will report to the Government by September 2020. Read our alert for more information on the key issues the taskforce will consider, as well as what similar developments are afoot in other jurisdictions, in particular in France.

Energy

European Commission continues to prioritise a single European energy market as part of its European Green Deal

The recent resolution of an antitrust case serves as a reminder of the importance the European Commission places on the creation of a single European energy market – one where, for example, there are no barriers to the cross-border flow of natural gas at competitive prices. It also highlights the Commission's resolve to target such cases as part of its commitment to the supply of secure energy to consumers and businesses in a way that contributes to the EU's greenhouse gas emissions reduction objective under the European Green Deal. After a three-year investigation, it has agreed legally binding commitments with Transgaz, the sole manager and operator of Romania's natural gas transmission network. The Commission began its investigation with inspections in June 2016 following concerns that the company could have abused its dominant position through conduct restricting exports of natural gas ("a key transition fuel") from Romania – the second largest natural gas producer in the EU. In particular, the Commission was concerned that Transgaz under-invested or delayed construction of infrastructure for gas exports, imposed interconnection tariffs that made exports commercially unviable and used unfounded technical arguments as a pretext for restricting exports.

To resolve the charges against it and avoid an antitrust infringement finding and fines, Transgaz has agreed to a package of commitments, to remain in force until 31 December 2026, that guarantee market participants can access "significant volumes" of export capacities via the interconnection points between Romania and neighbouring EU Member States. It will make minimum export capacities available at both the interconnection point between Romania and Hungary – equivalent to around one-sixth of Hungary's annual gas consumption – and the interconnections point between Romania and Bulgaria – equivalent to over half of Bulgaria's and Greece's annual gas consumption. It will ensure that its tariff proposals do not discriminate between export and domestic tariffs so exports are commercially viable. And it will refrain from using any other means of hindering exports. Of note, the final commitments provide for significant additional capacity compared to commitments the Commission market-tested well over a year ago. Transgaz's participation in the Romanian section of the Bulgaria-Romania-Hungary-Austria (BRUA) gas pipeline project is also now subject to legally binding deadlines. The Transgaz case is just one in a series of similar Commission enforcement actions centred on gas supply in Central and Eastern Europe. In May 2018 it imposed binding obligations on Gazprom to remove contractual restrictions on cross-border gas flows and ensure competitive gas prices in the region. And in December 2018 it fined BEH Group EUR77m for blocking rivals' access to Bulgaria's gas infrastructure network, notably after the failure of remedy negotiations. Both decisions are currently under appeal.

Industrial & Manufacturing

First-of-a-kind arbitration settles U.S. merger dispute

In September we reported on the challenge by the U.S. Department of Justice (DOJ) to Novelis' proposed acquisition of rival aluminium sheet supplier Aleris. In a first since it received the powers under the Administrative Dispute Resolution Act of 1996, the DOJ agreed with the parties to refer the disputed issue of product market definition to binding arbitration. Recently, and within days of the conclusion of a ten-day arbitration hearing, the DOJ's narrow view of the relevant market – the sale of aluminium automotive body sheet to North American customers – prevailed. Under the terms of the arbitration agreement, Novelis must now divest Aleris' entire aluminium auto body sheet operations in North America, which the DOJ considers will fully preserve competition in the industry, and reimburse the DOJ for its arbitration-related fees and costs. This sale adds to the divestment the parties agreed in October 2019 with the European Commission, which removes the entire overlap created by the transaction in aluminium automotive body sheets in Europe, to ensure its approval of the deal. While Novelis can close its acquisition of Aleris prior to divesting the U.S. assets, it must first receive the Commission's approval of the buyer of its production plant in Belgium.

The procedure was a gamble for the DOJ – if the arbitrator had agreed with the parties' argument that they competed with suppliers of steel for automotive parts as well as suppliers of aluminium, the DOJ would have been obliged to drop the complaint. In victory, the DOJ has hailed the process a success, saving it the time and cost of a federal court challenge. Assistant Attorney General Makan Delrahim notes that the "arbitration proved to be an effective procedure for the streamlined adjudication of a dispositive issue in a merger challenge". We expect the DOJ to seek parties' agreement to arbitrate in future merger enforcement, especially for cases turning on discrete issues like market definition.

Life Sciences

Chinese conditional clearance of Danaher/GE shows SAMR's willingness to focus on R&D impact

Danaher's USD21.4bn acquisition of GE's biopharma business has faced scrutiny from antitrust authorities across the globe. In December 2019 it was approved by the European Commission, subject to Danaher selling off certain businesses. We saw a similar result agreed by the South Korean Fair Trade Commission (KFTC) in February 2020. And most recently, in March, the U.S. Federal Trade Commission (FTC) cleared the deal after Danaher committed to divest businesses to an upfront buyer, Sartorius. The FTC notes that it coordinated with the antitrust authorities in Brazil, China, the EU and Israel to analyse the transaction and potential remedies. But it is the review by China's State Administration for Market Regulation (SAMR) which deserves a closer look.

SAMR found that the deal might restrict or eliminate competition on a number of global markets, including microcarriers and chromatography. The divestments required to address these concerns are not surprising and are for the most part in line with those agreed with the European Commission, FTC and KFTC. Interestingly though, SAMR also raised concerns in one particular market (hollow fibre filters for tangential flow filtration) where Danaher has a pipeline project that it found could compete with GE. According to SAMR, post-transaction Danaher may reduce its R&D investment and have lower incentives to commercialise similar innovative products, or could delay the launch of new products. It has required Danaher to provide the purchaser of the divested businesses with assets, tech and trade secrets relating to the project's non-exclusive licences. And, unusually, Danaher must also continue to be involved in the project for two years after the deal completes. This is not the first time that SAMR (or its predecessor MOFCOM) has assessed the competitive impact of a merger on pipeline products and potential impediment of R&D incentive and ability in the market. We saw it express concerns in this area, for example, in Bayer/Monsanto in 2018 and KLA-Tencor/Orbotech last year. But it does demonstrate SAMR's continued willingness to focus on R&D in merger analysis, which is in line with the developing approach of other key antitrust authorities, in particular in the EU, U.S. and UK. For more on this trend, see our Global trends in merger control enforcement report, mentioned above.

UK CMA remains committed to tackling illegal generic drug price increases, now armed with court guidance on unfair pricing

Drug pricing practices have been on the radar of antitrust authorities worldwide. In 2016 the UK Competition and Markets Authority (CMA) fined Pfizer and Flynn for abusing their dominant position through excessive and unfair prices of anti-epilepsy phenytoin sodium capsules. Prices of the drug in the UK had jumped overnight after de-branding and were many times higher than the prices charged in all other European countries. The price of 100mg of the drug rose from GBP2.83 in 2012 to GBP67.50 in 2013, for example. Considering the conduct to be a particularly serious breach, the GBP84.2m penalty the CMA imposed on Pfizer amounted to the largest fine ever levied under UK antitrust law. However, in June 2018 part of the CMA's decision was quashed on appeal to the Competition Appeal Tribunal (CAT) which found that its conclusions on abuse were in error. Following a recent unsuccessful appeal to the Court of Appeal, the decision will now have to be taken again.

The Court of Appeal's judgment is available here. Despite losing on three out of its four grounds of appeal, the CMA is upbeat and has welcomed the ruling as an important step forward in clarifying the legal test for excessive and unfair pricing, in addition noting the European Commission's rare decision to intervene in a national proceeding. While the Court found that the CMA had not sufficiently analysed comparator drugs, such as phenytoin sodium in tablet form, it did say that the CMA had some freedom in how it conducts its probes and did not have to carry out a full investigation of all comparators advanced by defendants. And while the Court found that the CMA had erred in its legal analysis of the economic value of phenytoin capsules, it also considered that the CAT was wrong to require the CMA to go beyond a cost plus calculation and use a hypothetical benchmark price that would have been charged in conditions of normal competition in order to determine whether the prices charged by Pfizer and Flynn were excessive and unfair. The Court also dismissed Flynn's appeal in its entirety. More generally, the Court (Sir Geoffrey Vos, Chancellor of the High Court) sounded a note of criticism against the CAT for its "somewhat repetitive" judgment, noting that it was unfortunate that the CAT had "used a variety of terminologies to describe the problems that it identified in the CMA's decision". The CMA continues to prioritise enforcement in the pharmaceutical sector. Armed with court guidance on how to analyse abuse in such cases, we therefore expect it to remain committed to other pipeline cases it considers important for the public interest – intervening "to protect patients, the NHS, and the taxpayers who fund it".

A&O antitrust team in publication

Recent publications by members of our global antitrust team include:

About your editor  - Emilio De Giorgi

Emilio leads our Italian antitrust practice and has over 20 years' experience of assisting Italian and multinational companies in merger, cartel and other behavioural investigations (including abuse of dominance, unfair commercial practices and misleading advertising) before the Italian Antitrust Authority and the European Commission, and is involved in some of the most significant cartel/behavioural cases in the Italian market. He also has extensive experience of advising on litigation before the Italian courts, and is currently representing the defendants in various follow-on damages actions. Emilio has an LLM from the University of Pennsylvania and is admitted both to the Italian bar and to the bar of the State of New York.