Ever since its introduction in 2021, Section 19a of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen or “GWB”) has attracted attention, not only in Germany, but also around the globe. Through this provision, the national legislator strengthened the regulatory framework against potentially anti-competitive practices by specific market players, namely “undertakings of paramount cross-market significance for competition” (“PCMS”; Unternehmen mit überragender marktübergreifender Bedeutung für den Wettbewerb). Germany was one of the first jurisdictions to int ..read more

The FTC first proposed to ban essentially all employer-employee non-competes throughout the US while I was a Commissioner. At that time, many — including me – expressed concern that the FTC did not have the authority to issue a broad rule overturning dozens of state laws and negating more than 30 million existing contracts. We have already seen several businesses and associations challenge the rule in federal court. We do not yet know how those court challenges will be resolved, so prudent businesses must begin planning for the possibility that the rule will go into effect. What follows is a ..read more

At the crack of dawn, the European Commission embarked on a milestone enforcement endeavor: the first unannounced inspection under the new EU Foreign Subsidies Regulation (FSR)! The European Commission, in tandem with national competition authorities, conducted its first dawn raids under the FSR at the Polish and Dutch offices of Nuctech, a Chinese company specialized in security scanning equipment and systems. What were they searching for? Evidence to substantiate “indications” of foreign subsidies that could distort the internal market. Observers have been eagerly waiting to see whether, and ..read more

In last week’s leading case on the abuse of a dominant position (2C_698/2021), the Federal Supreme Court sweepingly redefines the interpretation of abusive pricing and margin squeezes as well as the interplay between competition law and sector regulation. The court rules that Swisscom had not acted abusively and, therefore, lifts the sanction of around CHF 8m in its entirety. The Federal Supreme Court also sends a clear signal against the increasing (price) interventionism of the Competition Commission (ComCo).   Facts of the case In 2015, ComCo concluded that Swisscom, Switzerland’s larg ..read more

Cartels and Restrictive Agreements Policy and Procedure Revised Settlement Guidelines On 6 November 2023, the AFCA published revised settlement guidelines. Based on these revised guidelines, the AFCA will apply a settlement discount of up to 15% (compared to 20% under the previous settlement guidelines of 2004). In addition, the revised settlement guidelines expressly recognise the possibility of hybrid settlements: Availability of Settlements. Under Austrian competition law, settlements are available for all potential infringements of competition law, including not only cartels but also vert ..read more

Competition policy For the Czech competition law, 2023 was a year of significant developments. To begin with, after more than 2 years after the implementation deadline, the Czech Competition Act was finally brought in line with the ECN+ Directive. The Czech Parliament used the amendment to introduce numerous changes to the existing toolkit of the Czech Competition Authority (CCA), some of which remain controversial. In particular, as of July 29, 2023: The CCA gained the power to use evidence gathered in criminal proceedings as a proof in the CCA’s cartel proceedings. This includes police wire ..read more

Among the many investigations and decisions targeting Google worldwide, the sanction of EUR 250 million imposed by the French Competition Authority (the Autorité) on 15 March 2024 (see here) in what is now arguably the ‘saga’ of neighbouring rights, has a number of eye-catching features in several respects. Breaking news (unfolding when this post was finalised): Google’s behaviour pattern in the French case is very similar to events unfolding in California since April 15th. Faced with the prospect of California’s Competition and Preservation of Journalism Act, announced on April 15th, which wo ..read more

The Digital Markets Act (DMA) introduced an innovative framework aimed at promoting contestability and fairness in digital markets. In addition to imposing a multitude of substantial obligations on gatekeepers, the DMA incorporates a sophisticated and multi-faceted enforcement system. The European Commission assumes the primary role as the enforcer of the DMA, while the Member States and their national competition authorities (NCAs) play a limited role in the enforcement process. Furthermore, private enforcement of the DMA in national courts has been subject to much discussion. In this multi-l ..read more

Introduction In recent years, the Turkish Competition Authority (“TCA”) has markedly intensified its scrutiny of undertakings operating in the cosmetics sector with greater frequency, predominantly based on allegations of resale price maintenance and the restriction of online sales in this industry. In most of these investigations, the relevant undertakings have admitted the violation and applied for the settlement procedure. Accordingly, upon the acceptance of the settlement applications by the TCA, a reduction of 25% was applied to the administrative fines imposed on these undertakings. Furt ..read more

Introduction On March 21st Advocate General Emiliou handed down his Opinion in Joined Cases C-611/22P and C-625/22P, respectively Illumina Inc. v. European Commission and Grail LLC, and Illumina Inc. v. European Commission. One can argue that the Emiliou Opinion is an exercise in throwing the proverbial kitchen sink at the position of the European Commission and the judgment of the General Court in respect of the scope of the first subparagraph of Article 22(1) EUMR. Nevertheless, despite the almost C.S. Lewis and J.R.R. Tolkien feel of the authors debating in The Eagle and Child (and ninthly ..read more