The leaked Digital Markets Act
A near-final version of the EU’s Digital Markets Act (“DMA”) was leaked to the public this month. The greatly anticipated regulation reveals that there may be hefty changes in the activities of so-called “gatekeepers” despite intensive lobbying. In addition to amendments regarding the implementation and enforcement of the DMA, which provides broad jurisdiction to the European Commission, there are significant obligations to create leeway for competitors and users to choose other options than companies such as Apple and Google. A broad obligation on the interoperability of messaging services is foreseen. The FRAND (fair, reasonable and non-discriminatory) obligation and prohibitions on self-preferencing could also have considerable effects on the relevant markets. Much depends on how this monumental piece of legislation will be applied and interpreted by the relevant authorities.
“Home raids” – Will we get used to it?
It is well known that the European Commission exercises its power to conduct on-site inspections (so-called “dawn raids”) by extensively examining e-mails and (physical and electronic) documents and mobiles devices that are used for work purposes, including messaging platforms such as WhatsApp. Case handlers may request that individuals absent from the office come to the office with their laptops and mobile devices. Recently, the Commission confirmed that the agency had conducted an on-site inspection at the private home of a company employee implicated in a cartel investigation “for the first time in many years”. The Commission warned that it intends to use such powers more often.
Bundeskartellamt: Deutsche Bahn must allow third parties to access traffic data
Germany’s competition authority, the Bundeskartellamt, issued a statement of objections in April against the country’s largest railway operator, Deutsche Bahn, due to the hindrance of mobility platforms. Mobility platforms offer solutions for integrated route planning, which allows passengers to combine train tickets with other transportation. DB allegedly abuses its dominant position by preventing third-party service providers from accessing relevant traffic data, which obstructs the ability of third-party providers to provide forecasts on passenger rail services, including information on delays, the progress of a journey, cancellations, or platform changes.
Patents and anti-trust: China’s Supreme Court finds patent settlement violates competition law
In 2016, Wuhan Taipu Transformer and Shanghai Huaming Power reached a patent settlement after Taipu filed a lawsuit claiming that its patent for a special type of off-circuit tap changer was being infringed on. However, upon Huaming’s counter lawsuit, the patent settlement was found to violate China’s Anti-Monopoly Law via provisions including market sharing and price fixing. The settlement was deemed invalid, as the relevant provisions constitute an illegal horizontal agreement, i.e., horizontal monopoly agreement.
France’s competition authority applies the “failing-firm defence” for the first time
By applying the failing-firm defence for the first time, the French authority in April unconditionally approved the acquisition of furniture retailer Mobilux by its competitor Conforama.
The Intel battle
Subsequent to the EU General Court's annulment of the European Commission’s landmark EUR 1 billion abuse of dominance fine imposed on the chipmaker Intel, the Commission has appealed the case to the highest court. The General Court criticised that the Commission failed to adequately prove that Intel’s rebate system hinders competition. The outcome of the Intel appeal may impact other cases, including the EUR 4.34 billion fine on Google for abusing the dominance of its Android operating system.
Ukraine – Merger control in wartime
The Ukrainian Antimonopoly Committee recently published a temporary merger control guidance that affirms that the usual thresholds for merger notifications are still applicable and that parties are not exempted from the filing obligation, despite Russia’s invasion of the country. The guidance sets forth minimum disclosure requirements to, and special procedures for, the review of new filings and explains the repercussions for breaching the standstill obligation.
Japan to regulate digital markets
Japan’s competition authorities published an interim report on digital markets in April that underlines concerns about high entry barriers and a lack of consumer choice. Japan is considering how to regulate these markets, especially focusing on the competitive advantages of Apple and Google.
Australian Competition & Consumer Commission (ACCC) expresses self-preferencing concerns
Online marketplaces facilitate market entry for sellers while giving consumers a greater choice of goods. An ACCC report examining general online retail marketplaces has highlighted concerns on the use of algorithms to decide how products are ranked and displayed, the collection and use of consumer data, and inadequate dispute resolution processes and consumer protections.
Peruvian Competition Authority imposes fines for price-fixing
Peru’s competition authority, Indecopi, imposed a combined PEN 17.2 million (USD 4.6 million) fine on four companies for fixing the price of San Fernando branded turkeys via setting minimum prices. It was found that the companies artificially elevated the prices during the Christmas season between 2009 and 2016. The companies are also required to set up a competition compliance program.
Malaysia to adopt a hybrid merger control regime
Malaysia is one of the few countries that still do not have a merger control regime. Malaysia’s Competition Commission has proposed amendments to the country’s competition law, which introduced a hybrid merger notification regime (consisting of mandatory pre-notification and voluntary notification before or after the consummation of the transaction).
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