Competition & Antitrust updates

Austria

COVID-19 crisis: shutdown mergers expected
  • Austria
  • 03 September 2020

In the wake of the global economic crises triggered by the ongoing COVID-19 crisis, the Austrian Federal Competition Authority (AFCA) expects an increased number of company takeovers in the coming months; however, the number of mergers in 2020 to date has been lower than in previous years. The AFCA holds that it would not be appropriate to relax merger control for such 'shutdown mergers', as merger control is necessary to protect the Austrian market and the country's long-term economic development.

Family business and group privilege
  • Austria
  • 27 February 2020

The cartel prohibition applies to activities between independent undertakings; however, it does not apply to activities between a controlling and a controlled undertaking, as such a subsidiary would not enjoy economic independence. This concept is referred to as 'single economic entity', which such a 'family' of undertakings may enjoy. In a recent case, the Supreme Court reviewed the question of whether such a concept would also apply in relation to a jointly controlled undertaking.

Amazon slightly changes course
  • Austria
  • 15 August 2019

Amazon has offered to change its terms and conditions following a series of Federal Competition Authority (FCA) investigations regarding business practices on the 'Amazon.de' marketplace. The FCA conducted an extensive market survey in which approximately 400 of the top-selling Austrian marketplace traders on 'Amazon.de' were interviewed in writing and via telephone. The survey results showed that Amazon had market power for a representative selection of larger Austrian marketplace traders.


Belgium

Contributed by ALTIUS
Dawn raid's illegality does not automatically void subsequent request for information
  • Belgium
  • 21 January 2021

The Market Court of the Brussels Court of Appeal recently ruled in a case involving a Belgian telecoms operator, which had been ongoing for more than a decade. In this latest judgment, the Market Court ruled on the effects of a dawn raid's illegality and confirmed the two-step test for determining the same.

BCA suspects Caudalie of imposing minimum resale prices on distributors and limiting active and passive online sales
  • Belgium
  • 14 January 2021

Following dawn raids carried out in 2018, the Belgian Competition Authority's Investigation and Prosecution Service has opened an investigation regarding alleged anti-competitive practices committed by Caudalie, a French cosmetics company specialising in vinotherapy, after a Belgian pharmacist complained that his supplier was imposing a pricing policy on him.

First Belgian ruling on abuse of economic dependence
  • Belgium
  • 03 December 2020

In August 2020 a new act introducing a prohibition on the abuse of economic dependence entered into force in Belgium. In October 2020 the president of the Ghent Commercial Court has issued a judgment in the first abuse of economic dependence case in Belgium. As there is no equivalent prohibition in EU competition law, practitioners have been waiting for case law guidance on how to apply these conditions. However, it is questionable whether this first case provides such valuable guidance.

BCA updates its fining guidelines following entry into force of abuse of economic dependence concept
  • Belgium
  • 08 October 2020

After some last-minute delays, the Royal Decree of 31 July 2020 introduced the concept of abuse of economic dependence in Belgium. Following this royal decree, the Belgian Competition Authority has announced an update to its fining guidelines so that they apply to this new abuse.

BCA and civil courts rule on interim measure requests in football industry
  • Belgium
  • 10 September 2020

As in many other European countries, the COVID-19 pandemic forced the Pro League – the Belgian professional football league – to set up an alternative arrangement for the end of the disrupted 2019-2020 football season. Subsequently, football clubs have challenged such decisions to prevent relegation or promotion. In this context, the Belgian Competition Authority and the civil courts recently had to rule on different interim measure requests in the football sector relating to competition law.


Bosnia and Herzegovina

Contributed by Schoenherr
Impact of COVID-19 on Competition Authority operations
  • Bosnia and Herzegovina
  • 21 May 2020

On 17 March 2020 the government declared a state of emergency due to the COVID-19 pandemic. Despite the state of emergency, Competition Authority operations have continued. However, as office access is not permitted, only postal filings and submissions are accepted (ie, in-person filings are not allowed) and face-to-face meetings cannot be held. For now, the Competition Authority's filing and review deadlines remain unaffected.

BiH Competition Council introduces new tariffs
  • Bosnia and Herzegovina
  • 22 November 2018

The Bosnia and Herzegovina Competition Council will apply new tariffs as from November 2018. Among these, the most significant are the increased merger control clearance fees, which have doubled. The council took inspiration for the new tariffs from those of other regional competition authorities, including the Serbian and Montenegrin commissions.

Competition Council – no concentration when company takes over competitor's premises
  • Bosnia and Herzegovina
  • 21 December 2017

The Competition Council recently took a stand regarding whether a situation in which a food retail company takes over a competitor's business premises and continues the same business activity in those premises constitutes a concentration. The council concluded that such situations should be notified as they are not considered concentrations according to the Competition Act.

New Competition Act expected in 2018
  • Bosnia and Herzegovina
  • 14 December 2017

The Competition Council of Bosnia and Herzegovina recently set out its objectives and priorities for 2018 in its 2018 Work Programme. One of the council's medium-term objectives is to make market regulation more efficient with the aim of strengthening competition protection. The council has also stressed its dedication to improving its expertise and administrative capacity.

New Competition Council members appointed
  • Bosnia and Herzegovina
  • 20 July 2017

The process for appointing new Competition Council members is now complete and operational. Specific and complex rules exist for the composition of the council and for it to pass decisions. Among other things, there must be two members representing each of the three constituent ethnic groups of Bosnia and Herzegovina (ie, two Serbs, two Bosnians and two Croatians).


Brazil

Petrobras closes abuse of dominance investigations through divestment commitments
  • Brazil
  • 26 September 2019

State-owned oil and gas company Petrobras recently reached two settlements with the Administrative Council for Economic Defence to close five investigations into alleged abuses of dominance in the oil refining and domestic natural gas markets. The settlements have drawn significant attention, as they constitute the first time that divestment commitments have been adopted as a remedy in a dominance case.

Importance of contractual control in merger review
  • Brazil
  • 06 June 2019

The Administrative Council for Economic Defence recently issued a decision on the definition of 'de facto control' under Brazilian competition law. While the decision establishes certain criteria that companies should consider when determining whether their contractual relationships with close partners may confer de facto control, these criteria are somewhat unclear and do not allow companies to assess, with sufficient certainty, whether an agreement should be subject to mandatory review.


Bulgaria

Contributed by Schoenherr
CPC fines Kaufland for abuse of superior bargaining position
  • Bulgaria
  • 04 February 2021

The Commission for the Protection of Competition (CPC) recently fined retail chain Kaufland Bulgaria Lev343,417 (approximately €175,000) for abuse of a superior bargaining position. The fine was requested by an alcohol producer. The CPC also established that by abusing its superior bargaining position, Kaufland had also violated the interests of consumers.

CEZ's acquisition approved after reassessment of prohibition
  • Bulgaria
  • 28 January 2021

In August 2020 the Commission for the Protection of Competition (CPC) reopened its in-depth review of the sale of CEZ's Bulgarian assets to Eurohold. Based on the collected data in the course of the investigation, the CPC concluded that the merging of two large economic groups operating in the electricity and insurance sectors did not create or strengthen a dominant position of the affected markets in which the parties operate. The CPC unconditionally cleared the transaction.

CPC introduces pre-notification contact in merger proceedings
  • Bulgaria
  • 21 January 2021

From 1 January 2021, the Commission for the Protection of Competition (CPC) will be available for pre-notification discussions. To this end, the CPC has published rules for such contact. The CPC's rules on pre-notification contact are a step in the right direction in implementing best European practices on merger control. Nonetheless, it remains to be seen how practical they will be for the notifying parties.

Supreme Administrative Court repeals merger clearance for Sopharma Trading/Pharmastore
  • Bulgaria
  • 24 September 2020

The Supreme Administrative Court, acting as the second and final instance, recently repealed the Commission for the Protection of Competition's (CPC's) clearance for the acquisition of Pharmastore OOD by Sopharma Trading AD. In its decision, the Supreme Administrative Court ruled that the CPC had failed to analyse the de facto vertical links between Sopharma and CHS.

Administrative court repeals Eurohold-CEZ merger prohibition
  • Bulgaria
  • 20 August 2020

In October 2019 the Commission for the Protection of Competition (CPC) prohibited the Eurohold-CEZ merger due to its 'conglomerate' effect and the significant combined resources of the acquirer's and the target's groups, respectively. An administrative court recently repealed the prohibition on the grounds that the CPC formally opened in-depth proceedings but entirely omitted the in-depth investigation phase, thereby breaching Bulgarian law and the EU Merger Regulation.