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

European Court of Justice ruling on Super Bock puts an end to the formalistic approach to “by object” restriction of competition

The Portuguese beer brand Super Bock had tried to fix the minimum resale prices (i.e., resale price maintenance) for the distribution of its products in bars and restaurants, which from a formalistic interpretation constitutes a “by object” restriction of competition. However, the European Court of Justice’s (ECJ) judgement on Super Bock’s case confirms that the fact that a clause provides for pricefixing or market-sharing does not automatically amount to a “by object” infringement. Emphasising the importance of the relevant economic and legal context, the ECJ ruled that it remains necessary to display an adequate damage to competition to be considered a “by object” competition restriction.

Google's adtech is in trouble

The European Commission’s (EC) statement of objections accuses Google of distorting the European advertising technology industry (“adtech”) by favouring its own online display advertising technology services to the detriment of competing providers of advertising technology services, advertisers and online publishers. The EC preliminarily finds that Google is abusing its dominance in the markets (i) for publisher ad servers with DoubleClick For Publishers and (ii) for programmatic ad buying tools for the open web with Google Ads and DV360, and (iii) by favouring its own ad exchange, AdX. Should the EC find that Google breached European competition law, the company might be forced to divest part of its services to address competition concerns.

Bundeskartellamt orders Deutsche Bahn to grant access to its traffic data

Germany’s Federal Cartel Office, the Bundeskartellamt, decided on 26 June 2023 that national rail operator Deutsche Bahn abused its dominant position in the transport and infrastructure markets by hindering non-discriminatory real-time access to its traffic data for third-party mobility platforms. Therefore, the Bundeskartellamt ordered Deutsche Bahn to change certain contractual clauses and practices.

No exemption from antitrust laws in India

India's Supreme Court recently rendered a decision confirming that state-owned enterprises are not exempt from the application of antitrust laws. The court determined that the Competition Commission of India had the authority to investigate Coal India Limited and its subsidiaries for potential abuse of dominant position in the production and supply of non-coking coal.

Meta adopts a new rule in Europe

Meta had previously combined user data from its platforms Facebook, Instagram, and WhatsApp without obtaining explicit user consent. This raised concerns from the Bundeskartellamt about Meta’s potential abuse of its dominant position. The case was brought before the ECJ in order to determine whether a competition authority is entitled to review an undertaking’s data processing behaviour. While confirming the competition authorities’ jurisdiction to examine whether an undertaking’s conduct complies with rules other than competition law, including the GDPR, the ECJ stressed that this does not replace the supervisory or data protection authorities. Just prior to the ECJ’s ruling, Meta announced that it will allow its users to choose whether to give consent to the company to combine their data.

China’s antitrust regulator eyes pharmaceutical companies

After imposing a EUR 7.5 million fine on two drug wholesalers for engaging in price-fixing and market sharing for cancer treatment injections between 2015–2020, China’s antitrust regulator, the State Administration for Market Regulation, has fined a third pharmaceutical company EUR 1.7 million for determining the minimum resale prices of two widely-used emergency contraceptives between 2015–2021.

Restraining order on the largest merger in gaming history

On 18 January 2022, Microsoft reached an agreement to acquire Activision Blizzard for USD 68.7 billion. As noted in our previous recaps, the UK’s Competition and Markets Authority decided to block the deal, whereas the European Commission conditionally approved it. In the US, the US Federal Trade Commission (FTC) requested a restraining order to prevent Microsoft’s acquisition on the grounds that Microsoft would have the market power and enhanced incentive to withhold or alter Activision’s content in a way that would significantly reduce competition if the acquisition is completed. The FTC’s request has been temporarily granted, and the judge is expected soon to rule on whether this measure will be permanent.

A sustainable perspective on competition law

On 13 June 2023, the European Commission published its “Sustainable Finance” package of measures. The EC’s horizontal block exemption regulation and related guidelines have been updated to introduce new rules on sustainability agreements that facilitate cooperative efforts to achieve sustainable goals within the limits of competition law. As such, the new guidelines clarify that horizontal agreements pursuing sustainability goals may be exempted from antitrust rules. It is further noted that such agreements need to result in efficiency gains that are not assumed but substantiated and received by consumers and that competitive restrictions have to be necessary to reach the stated goals.

Tagged with: Gen & Temizer | Özer, Bulut Girgin, Simru Tayfun, Orçun Horozoğlu, Competition