American Express and two-sided antitrust markets: coming to a network near you
On 25 June the U.S. Supreme Court ruled in Ohio v. American Express that American Express (Amex) did not violate the federal antitrust laws by directing merchants not to “steer” cardholders to alternative credit cards as a condition for accepting American Express cards. In a groundbreaking decision, the Court held that analyzing the effect of the anti-steering rules on merchants alone was inappropriate, and that, instead, the combined effect of the rules on both merchants and cardholders should be analyzed in a two-sided “transaction platform” market. The decision likely will have broader implications far beyond the credit card industry on how to define (and evaluate effects) in markets where platforms or intermediaries connect groups of buyers and sellers. |
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A sign of things to come? CMA imposes first fine for breach of a ‘hold separate’ interim order
On 11 June 2018 the Competition and Markets Authority (CMA) fined Electro Rent £100,000 for breach of an interim order – the first such fine imposed by the CMA. The CMA has increasingly been pursuing merging parties for procedural violations, using powers it acquired in 2014. For example, in November 2017 the CMA fined Hungryhouse £20,000 for failing to provide documents requested by the CMA during its review into Just Eat’s acquisition of Hungryhouse.
Interim orders are a unique feature of the UK’s voluntary merger control regime. After a brief explanation of when interim orders are used and the background to the penalty imposed on Electro Rent, we consider the key takeaways from this case, and what merging parties can learn from these going forward. |
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The Italian Competition Authority (AGCM) takes action against online sellers of dietary supplements for regulatory non-compliance resulting in misleading actions
Further to a notice filed by European Specialist Sports Nutrition Alliance (ESSNA), the AGCM – the authority in charge of the enforcement of laws on deceptive advertising and deceptive commercial practices pursuant to the Italian Consumer Code, as well as the assessment of the correct use of nutrition or health claims – has started an investigation on the online sale of dietary supplements on the Italian market supposedly not complying with Italian regulatory provisions on dietary supplements, and resulting in misleading actions. |
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“Single entity defense” under scrutiny in China
On 20 July 2018, the new Chinese antitrust authority – the State Administration for Market Regulation (SAMR) – published two decisions sanctioning two ship tallying companies in Shenzhen for market partitioning and price fixing. |
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Competition Amendment Bill
On 1 December 2017, the Minister of Economic Development published the Competition Amendment Bill (the Amendment Bill) for comment. Pursuant to input from various interested parties an updated version of the Amendment Bill was tabled in Parliament on 11 July 2018.
The Amendment Bill seeks among others to address the issue of economic concentration and to drive transformation of the South African economy, as well as to strengthen the provisions of the Competition Act (Act) relating to prohibited practices.
Since the announcement on 6 June that the Council and European Parliament had reached agreement on the draft Directive establishing the Electronic Communications Code (the “Code”), the communications and competition communities have been on tenterhooks to see what the final version of the text contains. |
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UK Competition Appeal Tribunal overturns excessive pricing decision against Pfizer and Flynn
On 7 June 2018 the Competition Appeal Tribunal (CAT) rejected the decision by the Competition and Markets Authority (CMA) to fine drug makers Pfizer Limited and Pfizer Inc. (together “Pfizer”) and Flynn Pharma Limited and Flynn Pharma Holdings Limited (together “Flynn”) for charging excessive prices to the UK’s National Health Service (NHS) for the use of their drug in treating epilepsy, that was previously sold under the name Epanutin. |
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Good things don’t always come in small packages for the European Commission: Advocate General Kokott delivers her Opinion on the blocked UPS/TNT deal
On 25 July 2018, Advocate General Kokott proposed that the EU Court of Justice validate the annulment by the EU General Court of the European Commission’s 2013 prohibition decision of UPS’s planned acquisition of its logistics rival, TNT. In particular, Advocate General Kokott has confirmed in her (nonbinding) opinion that the General Court was justified in censuring the Commission and, in turn, quashing the prohibition decision, on account of a fatal procedural error committed by the Commission during its phase II administrative review. |
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Digital competition policy on the move: Price algorithms in the German Monopolies Commission’s spotlight – EU Commission launches public consultation process
Competition policy in the digital economy is gaining shape. Competition law concerns around price algorithms, big data and digital platforms are clearly the “talk of the town” in the European competition law community these days. On 3 July 2018, the German Monopolies Commission published its 22nd Biennial Report in which it discusses potential anti-competitive effects of price algorithms and proposes far-reaching amendments to the competition law enforcement framework. Meanwhile, the EU Commission has launched a consultation process with a view towards shaping competition policy in the era of digitization. |
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A changing landscape? What AT&T/Time Warner means for future deals
In one of the most significant antitrust cases in recent years, AT&T won the right to merge with Time Warner when Judge Richard Leon ruled in their favor in June 2018. |
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Communications and competition: we’ve got the tools for the gigabit society
Since the announcement on 6 June that the Council and European Parliament had reached agreement on the draft Directive establishing the Electronic Communications Code (the “Code”), the communications and competition communities have been on tenterhooks to see what the final version of the text contains. |
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New UK foreign investment screening rules come into force
New provisions, which came into force on 11 June 2018, introduce lower merger control thresholds for transactions in certain sectors. These revised thresholds are designed to provide the UK Government with increased scope to scrutinise foreign investments and transactions that raise national security concerns. |
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U.S. federal courts are not bound by a foreign government’s submission when resolving conflicts between U.S. antitrust law and foreign law
On June 14, 2018, the United States Supreme Court ruled in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. that federal courts are not bound to treat as conclusive a foreign government’s statements submitted in a legal proceeding. In so holding, the Court vacated an appellate court judgment in which several Chinese vitamin C exporters escaped federal antitrust liability because the Ministry of Commerce of the People’s Republic of China (MOFCOM) allegedly mandated their anticompetitive conduct. |
