Two-minute Recap of Competition Law Matters Around the Globe – December 2023

RWE/E.ON Asset Swap Survives Again

The EU’s General Court (“GC”) blocked the attempts of eleven German energy suppliers to annul the EUR 43 billion asset swap deal between RWE and E.ON. Earlier, RWE acquired E.ON's renewable and nuclear assets, while E.ON's acquisition of parts of RWE’s subsidiary innogy received conditional approval after proposing divestments in Hungary, the Czech Republic, and Germany. The GC had previously rejected a similar challenge to RWE's acquisition of E.ON assets in 2019.

Football and European Law: New Hopes for the European Super League and the Local Player Rule in Belgium

The European Court of Justice (“ECJ”) has ruled that football’s international governing committee, FIFA, and its European counterpart, UEFA, abused their dominance by blocking football clubs from forming a new, club-level project—the European Super League—and labelled the decision of these associations as arbitrary and lacking a transparent, objective, non-discriminatory and proportionate framework. However, this decision does not adjudicate on the project's validity, which could result in a major shake-up of the football industry if the European Super League becomes a reality.

In another football-related ruling, the ECJ determined that the rule requiring that at least eight locally trained players be included on a team may limit competition, following Royal Antwerp FC’s appeal of its claim before the Belgian Court of Arbitration for Sport. The ECJ’s decision underlines that it is necessary to assess if such a restriction is justifiable insofar as it ensures achieving the goal of locally recruiting and training young footballers and whether it goes beyond what is necessary to attain this goal.

Rolex Hit by a Record Fine

The competition authority in France fined luxury watchmaker Rolex EUR 91.6 million for banning the online sales of its 27 local retailers, rejecting the claim that the restrictions were needed to prevent counterfeiting and parallel trade. The decision revealed that these goals could be achieved through less-restrictive means, as Rolex's competitors have not imposed comparable bans.

New Merger Guidelines Published in the USA

The US Federal Trade Commission and Department of Justice have jointly published the 2023 Merger Guidelines (“Guidelines”), which aim to reflect the realities of modern markets, advances in economics, and the legal sphere. The Guidelines are designed to respond to comments received during the public-debate phase and to promote transparency in the agencies' decision-making process when reviewing mergers. The new Guidelines include a lower concentration threshold for presumptive illegality, scrutiny of multiple acquisitions in the same industry, expanded concerns in vertical mergers, and consideration of entrenchment theories. Additionally, they address potential harm to competition in labour markets, acknowledging that concerns may arise at lower concentration levels compared to product markets. The Guidelines are not legally binding but provide insight into the agencies' approach to merger enforcement.

Tech Companies United Against the DMA

Google, Meta, Qualcomm, and seven other technology companies have formed the Coalition for Open Digital Ecosystems (“CODE”) to push for open digital ecosystems in the context of the EU’s Digital Markets Act (“DMA”). CODE intends to collaborate with academics, politicians, and digital ecosystem firms to provide evidence-based solutions on how the DMA could promote digital openness. Honor, Lenovo, Lynx, Motorola, Nothing, Opera, and Wire are among the firms represented. CODE is expected to start its operations soon and engage in dialogue with the European Commission. Last year, Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft were designated as gatekeepers under the DMA to ensure fair competition in the online economy.

Australian Pathology Company Scraps Its Hostile Takeover Bid

Australian Clinical Labs (“ACL”) withdrew its EUR 1.04 billion bid to acquire Healius, a rival pathology services provider, after the Australian Competition and Consumer Commission (“ACCC”) found ACL’s proposed remedy of divesting pathology collection centres inadequate. ACCC expressed concerns that the merger of the two largest pathology services providers in the country could result in increased prices and decreased quality for private hospital services.

Japanese Legislation Follows the DMA

In the same vein as the DMA, Japan is in the process of regulating tech giants such as Apple and Google, requiring them to allow external app stores and payments on their mobile operating systems to prevent the abuse of their dominant position in the Japanese market. As a result of this regulation, Japanese companies would be able to run dedicated game stores on iOS and Android devices, as well as use payment systems with lower fees from Japanese fintech companies. The legislation is expected to take in effect in 2024 and will focus on app stores and payments, search, browsers, and operating systems.