Dawn raids remain a key element of the European Commission’s enforcement toolkit. Significantly, in recent years, we have seen the focus of inspections shift, with officials concentrating much more heavily on a company’s electronic materials when searching for ‘smoking gun’ evidence of anti-competitive conduct. The Commission’s practice in this regard and more generally has been the subject of several appeals. Over the past four months, we have seen EU courts hand down important rulings which confirm and clarify the Commission’s approach. There are several takeaways:

The Commission must have sufficiently strong evidence to justify a dawn raid.
In a ruling this month on inspection decisions relating to a number of French retailers, the General Court found that the Commission had sufficiently strong evidence to suspect the retailers were engaged in a concerted practice as regards exchanges of information on discounts and prices. However, it ruled the Commission did not have sufficiently strong evidence relating to exchanges of information on future commercial strategies to warrant an inspection on that ground. The General Court partially annulled the decisions. While it is not the first time we have seen the EU courts take action when they consider that the Commission has set the scope of its investigation too wide, it confirms their continued willingness to do so.
The Commission is able to take a copy-image of a computer hard drive.
The European Court of Justice (ECJ) in Nexans and Prysmian (in relation to the power cable cartel) held that the Commission’s dawn raid powers are wide enough to enable it to examine either the original data or a copy of it. In fact, said the ECJ, it is in the interests of the company that the Commission reviews a copy as it avoids the original data/computer being tied up for long periods while the Commission carries out its searches. But the Commission must ensure that the rights of the company are safeguarded – it can only place data that is relevant to the investigation on its file, and not the whole copy.
The Commission can take copies back to Brussels to continue the inspection.
The ECJ was clear that the rules setting out the Commission’s powers do not require the search to take place exclusively at the company’s premises. The Commission is therefore entitled to continue its examination of data in its own offices. But the ECJ has set out certain limits. In particular, the Commission must be able to justify this approach in the interests of the effectiveness of the inspection or to avoid excessive interference with the company’s operations. This could be, for example, on the basis that the volume of data to be examined would extend the duration of the inspectors’ presence at the company’s premises – in Nexans’ case, the Commission was at Nexans’ French premises for four days and spent an additional eight days examining data at its own offices. And the companies must be able to have a representative present.
Company requests asking the Commission not to seize certain data that harms the private lives of its staff or to return such data must be clear.
The General Court noted a company can make such requests. But if they are not made clearly and precisely, any refusal by the Commission cannot constitute a decision that is open to challenge by the company.

Looking forward, the Commission’s dawn raid practices are set to come under yet more scrutiny. There are reports that Alcogroup, which has failed in previous attempts to challenge the seizure of certain documents during dawn raids in the Commission’s probe into an alleged ethanol cartel, has this month started proceedings before the European Court of Human Rights – alleging a breach of its fundamental rights. Finally, on a related note, the General Court has ordered a novel procedure for the review of certain Facebook documents in the context of two Commission investigations into the company (relating to Marketplace and data practices). Facebook had challenged two Commission requests for information (RFIs) on the basis that they covered documents containing sensitive personal data. The General Court president partially suspended the RFIs, concluding that they may cause serious and irreparable harm to the privacy of Facebook employees. He found that the RFIs were similar to a dawn raid in that they required Facebook to produce a large number of documents on the basis of search terms, with the Commission assessing the relevance of the materials at a later date. His practical solution: that the contested documents be placed into a virtual data room, to be accessed by a limited number of Commission officials in the presence of Facebook’s lawyers. Facebook has welcomed the orders. It will be interesting to see if this procedure is used again in other antitrust investigations.

EU foreign investment screening regime now fully operational

With the EU Regulation 2019/452 (the Regulation) establishing a framework for the screening of foreign direct investments into the European Union becoming fully operational on 11 October 2020, companies can expect increased scrutiny of their EU investments. FDI reviews will continue to be conducted at national level, on the basis of any national legislation (the adoption of which is not obligatory), with decisions taken by the competent national authorities. However, the Regulation: (i) establishes minimum standards for those regimes; (ii) creates a reporting and cooperation mechanism between Member States and with the European Commission; and (iii) requires the national authorities to take any of their comments or opinions into account before adopting a decision. As a result, it is clear that non-EU investors must consider any possible impact of an investment on security or public order across the EU, and not just within the country in which the investment will take place.

In addition, while currently only around half of the EU Member States have national foreign investment regimes in place, we expect that number to grow in the near future – not least because of the Commission’s March 2020 call for Member States to set up fully fledged screening mechanisms (and make full use of them) in the context of the pandemic and related economic vulnerability. Indeed, the picture in the EU is reflective of a worldwide trend of countries seeking to introduce or revise foreign investment legislation. Those planning investments abroad need to keep abreast of the evolving laws and how they are applied in practice.

See our alerts for further information on the mechanics and impact of the new EU screening regime, and our FDI tracker for Covid-19-related updates to FDI regimes across the globe.

EU Covid-19 State aid framework prolonged and extended

On 13 October 2020, the European Commission announced its fourth amendment of the State aid Temporary Framework, which was adopted in March to give national governments greater flexibility under the State aid rules to support their economies during the Covid-19 outbreak. This latest amendment prolongs its applicability for an additional six months, until 30 June 2021. Recapitalisation measures can be granted under the Temporary Framework for an additional three months, until 30 September 2021. The scope of the Temporary Framework is also extended to include a new measure which enables Member States to provide support of up to EUR3 million per undertaking to cover fixed costs in cases where companies face a decline in turnover of at least 30%. In addition, the amendment adapts the conditions for Member States’ exit from recapitalised enterprises and extends the temporary removal of all countries from the list of “marketable risk" countries under the Short-term export-credit insurance Communication, ensuring broader availability of public short-term export-credit insurance.

Since its introduction, over 380 State aid measures have been notified and approved under the Temporary Framework – amounting to around EUR3 trillion (as confirmed by Competition Commissioner Margrethe Vestager). The decisions adopted by the Commission show some clear trends:

Sectors covered – as may be expected, besides schemes aimed at supporting the broader economy and open to undertakings in all sectors, a large proportion of approved measures have been directed at sectors that have been particularly badly affected by the pandemic. In particular, almost all Member States have notified schemes to support the tourism, hospitality and/or air travel sectors. The other sector that seems to have benefited most from sector-specific measures under the Temporary Framework is the agri-food sector, particularly in Southern and Eastern European Member States.
Form of aid granted – a large majority of the approved measures concerned schemes open to all undertakings in a certain sector and/or meeting certain qualifying criteria. Less than 10% of the measures assessed by the Commission concerned aid measures benefiting an individual undertaking. In turn, almost all of these individual aid measures benefited airlines, with only France implementing two individual measures in the automotive sector (providing State guarantees to Renault and the NOVARES group). Under the approved measures, aid is provided in a variety of forms, including through direct grants, loans, guarantees and tax benefits. The possibility of adopting recapitalisation measures under the Temporary Framework, which was introduced in May, has so far been used only in a limited number of cases. In particular, the individual aid provided to a number of airlines took the form of recapitalisation measures, whilst Germany, Spain, Italy, Latvia and Poland have also implemented broader schemes providing for the possibility of aid in the form of recapitalisation instruments.

An overview of all State aid measures approved by the Commission in the context of the Covid-19 outbreak can be found here. More generally, the Commission is pushing on with its broader evaluation of the State aid rules. It has published the results of its ‘fitness check’ assessment, which concludes that, overall, the State aid rules are “broadly fit for purpose”, but that certain individual rules would benefit from revisions to clarify, simplify, and take account of developments in legislation, priorities, markets and technology. We can expect to see further consultations on these in due course.

European Commission seeks contributions on competition policy and the Green Deal

In our September edition of Antitrust in focus, we reported that the European Commission was set to launch a call for contributions on how competition rules and sustainability policies work together. This has now been published, taking the form of a set of questions on how the State aid, antitrust and merger control rules currently work together with environmental and climate policies and how they could interact even better. The Commission is seeking ideas from stakeholders on, for example, whether fewer State aid measures should be approved for activities with a negative environmental impact, or if more State aid should be allowed to support environmental objectives, perhaps in the form of a “green bonus”. And it wants to hear about any examples of cooperation between firms to support Green Deal objectives that could not be implemented due to antitrust risks, or circumstances in which the pursuit of Green Deal objectives would justify restrictive agreements beyond the current enforcement practices. The Commission will no doubt look closely at the potential forms of guidance in this area – the call for contributions suggests general policy guidelines, case-by-case assessment and communication of enforcement priorities as possible options.

The call for contributions mirrors Competition Commissioner Margrethe Vestager’s statement in September that competition policy is not the primary means to fight climate change and protect the environment – it is a complement to regulation and taxation. But it is nevertheless clearly a focus area for Vestager and her Competition team. With Member State antitrust authorities already starting their own initiatives in this area (eg in the Netherlands and Greece – see here and here for more details), the Commission is no doubt keen to set out its position early, in order to promote harmonisation across the bloc. The deadline for contributions is 20 November 2020. Responses will feed into a conference due to take place in early 2021.

Latest step in the evaluation of the EU antitrust rules on vertical agreements gives further clues on likely amendments

Last month we reported that the European Commission had published a summary of its findings so far in relation to its evaluation of the Vertical Block Exemption Regulation (VBER) and related guidelines (also see our more detailed alert). In particular, we picked out the key areas where we expect to see amendments to the rules. Now, the Commission has published an “inception impact assessment”, which sets out the framework for the next stage of its evaluation. This document gives helpful further insight on the likely areas of change. In some areas, a softening of the rules is possible:

Possible relaxation of certain online sales restrictions. The Commission is contemplating whether the following measures should no longer be regarded as ‘hardcore’ restrictions of EU antitrust rules: (i) ‘dual pricing’ (ie charging a wholesaler different – often higher – prices for products intended to be sold online rather than offline); and/or (ii) imposing criteria for online sales that are not equivalent to the criteria imposed in brick and mortar stores. If these changes were adopted, it would give suppliers greater opportunities to incentivise investments in physical stores at a time when, the Commission notes, such outlets are facing increasing pressure.
Enabling greater flexibility over the design of distribution systems. One proposal is to expand the exceptions for restrictions on so-called ‘active sales’. This could result in suppliers being able, for example, to establish shared exclusivity between two or more distributors in a particular territory, or to combine exclusive and selective distribution models more freely. Another option is to ensure more effective protection of selective distribution systems by allowing restrictions on sales from outside the territory in which they operate to unauthorised distributors in that territory.
Exploring the treatment of efficiencies for resale price maintenance (RPM). Despite requests from some stakeholders during the earlier consultation, the Commission seems determined to retain RPM as a hardcore restriction. However, it intends to engage businesses in discussions about the conditions under which efficiencies can be claimed and what evidence would be needed to satisfy the exemption from the prohibition on anti-competitive agreements.

But in other areas, a tightening of the provisions of the VBER may be on the cards. In relation to dual distribution (where suppliers sell their goods/services directly to end customers in competition with their retail distributors), while the Commission moots expanding the exception to wholesalers and/or importers, it also proposes limiting it in other ways, eg by introducing a threshold based on retail market shares, to reduce the risk of exempting agreements where concerns over the impact on competition at the horizontal (retail) level are not negligible. And in terms of parity obligations (or 'most-favoured nation' clauses), the Commission is considering the potential removal of the benefit of the VBER and instead requiring an individual effects-based assessment of some or all of these types of provisions. In particular, the impact assessment suggests that obligations relating to indirect sales and marketing channels, including platforms and other intermediaries, could be excluded (which ties in with reports that the Commission’s proposed regulation to police the behaviour of ‘gatekeeper’ platforms, due to be unveiled in full in December, might also blacklist such measures).

More generally, and as reported previously, the Commission intends to clarify and simplify the rules on vertical agreements, incorporating principles from recent case law. And it wants to fill in potential gaps in the rules, identifying, in particular, restrictions on the use of price comparison websites and online advertising restrictions and the treatment of online platforms in areas such as agency and dual distribution. So new guidance on these issues looks extremely likely. Interestingly, the Commission expressly notes that it will take into account any issues relating to agreements pursuing sustainability objectives – presumably informed by the findings of its consultation on competition policy and the Green Deal (see article above).

We will know more about the likely scope and detail of these changes as the Commission’s evaluation process progresses. A wider public consultation is due to be published before the end of the year, with draft revised rules to be released during 2021.

New Board of the Spanish Competition Authority: the first quarter

On 16 June 2020, a new Board of the Spanish Competition Authority (CNMC) was appointed. Five members were replaced, including the President. That means that half of the Board of the CNMC – including three of the five members of the Competition Chamber – was overhauled. Cani Fernández is the new President, with more than 30 years of antitrust law experience as a private practitioner.

The new Board has had a busy first four months in office:

In antitrust matters, the new Board has so far reached decisions in two infringement proceedings (School Transportation in Navarra and Stevedoring Framework Agreement). In the first, the Board found the existence of a cartel formed by 33 school transport companies and an industry association, which affected the public tenders of the regional government of Navarra (Northeast Spain) for school transport. The case against some of the companies investigated was ultimately dropped due to the absence of evidence or the existence of a plausible alternative explanation. In the second decision, the CNMC sanctioned an industry association and six trade unions for imposing the forced subrogation, under conditions that were neither objective, transparent nor fair, of stevedoring personnel to certain companies within the Negotiating Committee of the Fourth Stevedoring Framework Agreement. However, the CNMC decided to impose only symbolic sanctions because, during the negotiations of the Fifth Stevedoring Framework Agreement, drafts were sent to the CNMC, which has seen a clear willingness of the parties to comply with antitrust law and the liberalisation of the sector.
In our view, these two decisions show that, although the CNMC maintains the same level of requirement for companies to comply with antitrust law, there has been some improvement in the legal and economic assessment of cases.
Turning to merger control, the new Board of the CNMC has so far authorised 13 concentrations, compared to the 26 authorised during the same period in 2019. This decrease is most likely due to the impact of the Covid-19 pandemic, although the CNMC itself has acknowledged that the difficult economic situation could ultimately give rise to a high number of transactions between competitors in the final quarter of the year.

Given the current uncertainty, the new President highlighted (during her speech at the European Competition Day on 8 September 2020) the need to provide a swift response in cases of acquisition of failing firms. She also expressed that international cooperation between agencies is essential in order to ensure both consistency in decision-making and in order to reach a common understanding about the failing firm defence. Finally, she suggested that the CNMC would be open to re-evaluate certain market definitions – either temporarily or in a more sustained manner over time – since, as a result of the pandemic, some product and/or geographic definitions may have changed.

What’s next:

We do not expect to see a decrease in the CNMC's antitrust activity, nor a more lax application of the rules. On the contrary, the forthcoming implementation of the ECN+ Directive (due on 4 February 2021) and the public statements of the new President suggest that stronger enforcement of antitrust rules in Spain is likely in the near future. This may well include the CNMC continuing to impose severe sanctions on directors found to have participated in the infringing conduct of their companies. In fact, a draft bill reforming the Spanish Competition Act proposes a substantial increase in the sanctions that can be imposed on directors (from EUR60,000 to EUR400,000), which the CNMC expects to increase deterrence. In addition, the CNMC will most likely continue to make use of deterrents other than purely economic sanctions such as debarment (as provided for in the Public Sector Procurement Law).
The fight against bid-rigging will continue to be a priority for the CNMC, especially in view of the importance of public procurement in Spain.
The real challenge for the CNMC going forward will be to improve the legal and economic assessment of the decisions adopted by the Board, both in antitrust matters and in merger control. In fact, this was expressly stated by the new President in her speech at the Spanish Parliament before her formal appointment last June. We will watch with interest to see how the CNMC seeks to achieve this goal.

China’s SAMR releases new merger control rules

Chinese antitrust regulator, State Administration for Market Regulation (SAMR), has released the long-waited Interim Provisions on Review for Concentration of Business Operators (Interim Provisions), which will be effective as of 1 December 2020. The Interim Provisions effectively consolidate six existing merger control-related regulations into one set of rules with certain revisions. While it is clearly a welcome move as it provides more clarity on both the substantive and procedural aspects of the Chinese merger control regime, the Interim Provisions do not appear to deviate from any key principles or practices under the current system.

The Interim Provisions, along with the corresponding SAMR press Q&A, clarify the definition of "control", calculation of revenues and the standards for conducting substantive analysis (most of which in fact reflects existing SAMR practice). The Interim Provisions also specify that the duration of remedies imposed should be explicitly stipulated in the clearance decision. Other revisions include the newly-introduced legal liability for the buyer of the divested business and the trustee, a shortened time frame for investigating failure to file cases and further clarification of the grounds for initiating an investigation into mergers that do not meet the thresholds. Interestingly, SAMR also added a clause in the Interim Provisions noting that while conducting merger reviews, the regulator "should treat all business operators equally". SAMR has in the past been criticised by some for taking an allegedly biased approach to non-Chinese firms. This clause may be intended to address such criticism. Having said that, the addition is not completely new – the same reference is already contained in two 2019 SAMR interim provisions on monopoly agreements and abuse of dominance. The precise impact in the merger control context is to be seen.

Watch out for our forthcoming alert where we will comment in more detail on the Interim Provisions.

Digital & TMT

DOJ files suit against Google, as U.S. House Big Tech report calls for ambitious reform of U.S. antitrust rules amid international proposals for change

In what has been hailed as the most significant U.S. antitrust case against a tech firm since Microsoft in 1998, the U.S. Department of Justice (DOJ), together with eleven State Attorneys General, has filed a suit against Google. The complaint alleges that Google entered into a “series of exclusionary agreements that collectively lock up the primary avenues through which users access search engines, and thus the internet”. In particular, states the complaint, the agreements resulted in Google being the “preset default search engine on billions of mobile devices and computers worldwide and, in many cases, prohibiting preinstallation of a competitor”. Google has responded, describing the complaint as a “deeply flawed lawsuit”. More broadly, the complaint is a key milestone in a wider investigation, started by the DOJ in July 2019, into whether online platforms have reduced competition and harmed consumers. Commenting on the Google suit, Attorney General William Barr warns that it is “not the end of [the DOJ’s] review of market-leading online platforms”.

Meanwhile, the House Subcommittee report recommends radical reforms

The suit comes just two weeks after the U.S. House Subcommittee on Antitrust published its report on competition in digital markets. This marks the culmination of 15 months of investigation, which involved the collection of 1.3m documents and seven hearings (one of which featured testimony from the CEOs of Amazon, Apple, Facebook and Google). The report concludes that Amazon, Apple, Facebook and Google “have come to function as gatekeepers” and have built up “significant and durable market power”. It alleges these platforms have engaged in various forms of potentially harmful conduct, such as using their dominance in one market to advantage their other lines of business, and preferential/discriminatory treatment. The report concludes that Congress should consider a broad range of reforms aimed at strengthening existing U.S. laws and enforcement in the digital sector.

Perhaps most radically, the report recommends “structural separations and line of business restrictions”. The idea is that dominant platforms would be prohibited from operating in certain markets, and in particular prevented from selling their own products on their platforms. The report also calls for new non-discrimination rules (eg to ban self-preferencing), interoperability and data portability requirements and for the existing Sherman Act to be extended to include a prohibition on abuse of dominance. And it suggests that “problematic precedents in the case law” – such as Ohio v. American Express, which increased the burden for proving antitrust claims in two-sided markets – should be overridden. On mergers, there are two headline recommendations: (1) to require dominant platforms to notify all transactions “outside the current Hart-Scott-Rodino (HSR) process”, ie regardless of whether the HSR thresholds are met and with no HSR deadlines being triggered; and (2) to establish a presumption that any acquisition by a dominant platform is anti-competitive (rebuttable only if the parties can show it is “necessary for serving the public interest and that similar benefits could not be achieved through internal growth and expansion”).

The report is largely a political document. While the investigation started life as a bipartisan initiative, Committee Republicans ultimately did not sign on to the final report. But while the Republicans released their own conclusions, their reports still argue in favour of increased antitrust regulation against the tech companies, albeit on different grounds.

The House Subcommittee would likely face difficulty in translating its ambitious recommendations into actual changes to the rules. Many of its suggestions would require extensive legislative amendments to the antitrust laws of the type that have not passed Congress in many decades. However, the report does reflect a continued focus on antitrust reforms in the digital sector by policymakers (as well as antitrust authorities) worldwide.

The global context

This month, we heard Andrea Coscelli, CEO of the UK’s Competition and Markets Authority (CMA), give more detail on a possible parallel UK merger regime for acquisitions by companies with “Strategic Market Status”, which could be mandatory in nature and may involve a more cautious standard of proof. He was speaking at the annual Fordham conference in a session involving Antonio Bavasso, Global Co-Head of the Allen & Overy antitrust group. Further, in an interview with the Financial Times a week later, Coscelli warned that the CMA could open market investigations into Facebook and Google (following the CMA’s digital advertising market study findings) if the UK Government does not establish a digital regulatory regime and regulator within a year. And EU Competition Commissioner Margrethe Vestager, also speaking at the Fordham conference (as well as during a later webinar), mapped out the two pillars of the Commission’s new legislative proposal for digital markets. First, ex ante regulation targeted at digital gatekeepers. Secondly, a new tool enabling the Commission to investigate digital markets and intervene where it identifies structural issues – interestingly, the Commission now appears to have decided that this new tool will apply only to the digital sector, and not across all markets (see our alert on the initial proposals). More on both the UK and EU proposals are expected before the end of the year. Other authorities (and governments) are similarly progressing their own reform proposals.

In the meantime, as in the U.S. and pending the implementation of any reforms in their respective jurisdictions, antitrust authorities across the globe are continuing their enforcement efforts against Big Tech. Most recently:

The Paris Court of Appeal has upheld the French Competition Authority’s interim measures decision ordering Google to negotiate remuneration with French media publishers for the re-use of content on its search engine.
Korea’s Fair Trade Commission has confirmed it is investigating Google’s app store fees.
The Japan Fair Trade Commission has accepted commitments from Amazon in relation to allegations that it asked suppliers to pay a proportion of revenue from discounted goods to compensate for the discounts.
The Italian Antitrust Authority has opened an investigation into Google relating to display advertising in Italy.
Overall, as proposals for reform advance amid a growing number of investigations, it is clear that digital markets, and online platforms in particular, will remain under the antitrust spotlight for some time to come.

European Commission courses unprecedented procedure in accepting Broadcom’s chipset commitments

In just over a year, the European Commission has wound up an abuse of dominance investigation into Broadcom’s behaviour in chipset markets for TV set-top boxes and xDSL and fibre modems. To speedily and conclusively address its concerns over exclusivity or quasi-exclusivity arrangements and/or leveraging provisions (such as rebates), the Commission has accepted wide-ranging legally binding commitments from Broadcom that apply to its arrangements with all device manufacturers (direct customers as well as indirect customers in Europe). The commitments – which will apply for seven years – operate at two levels:

At the EEA level, Broadcom will: (i) not enter into agreements that would oblige customers to buy any specific amount of their total needs for these chipsets; (ii) not enter into agreements that would incentivise customers to purchase these chipsets through rebates or other advantages; and (iii) not link the supply of these chipsets to the purchase of any minimum quantity of other chipsets.
At the worldwide (excluding China) level, Broadcom will: (i) not enter into agreements that would oblige customers to purchase more than half of their total needs for these chipsets; (ii) not enter into agreements that would incentivise customers to purchase more than half of their total needs for these chipsets through rebates or other advantages; and (iii) not link the supply of these chipsets to the customers purchasing more than half of their total need for other chipsets.

The extra-territorial element is rare – the Commission says it is necessary for the scope of the commitments to go beyond the EEA given the economies of scale typical in the semiconductor industry: manufacturers need to produce large amounts of chipsets to be competitive. The Commission apparently cooperated with other agencies on this, including the U.S. Federal Trade Commission and the South Korean agency.

And the process to resolution has been unprecedented, and marks Broadcom out as an important case. In October 2019, under four months after the Commission initiated proceedings, it imposed interim measures – the first time the tool had been used in nearly 20 years (see our alert for further information). Commissioner Vestager’s view is that the interim measures focused corporate minds on and incentivised a swift settlement, allowing for “commitment discussions to take place in a more efficient manner and without the risk of the market deteriorating in the meantime”. Notably, the final commitments are broader than the restrictions imposed by the interim measures decision (which related to just six device manufacturers and fewer products) and indeed stricter than the commitments market tested in April (for example, including no threshold for purchases from Broadcom in the EEA and applying for an additional two years to reflect the investment and development cycles characterising the chip industry). The case is the first time interim measures have been used prior to commitments, and Vestager doubts it will be the last, especially in fast-moving markets. And the up-side for Broadcom? It has avoided lengthy resource-intensive legal proceedings, as well as a possible infringement decision and fine, and has seen the Commission also close its probe into other conduct, relating to its intellectual property strategies and interoperability.

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