The ACM’s guidance to address competition law concerns for FinTech in the creation of technical standards

Introduction

On December 3, 2018, the Dutch Authority for Consumers & Markets (“ACM”) published a speech from its board member, Cateautje Hijmans van den Bergh, regarding potential competition law concerns in the financial technology (“FinTech”) sector.

In particular, further to the European Parliament’s study on FinTech and competition law (the “Study”) – as discussed in a previous blog post – Hijmans van den Bergh voiced concerns regarding potential FinTech foreclosure, following the adoption of Technical Standards. She also provided some guidance regarding access to essential inputs held by firms in the sector. Continue Reading

General Court dismisses appeal of the European Commission’s decision in cross-border pay-TV investigation (T-873/16 Groupe Canal +)

By Melissa Van Schoorisse and Laura Corbett on December 22, 2018 Posted in Antitrust, Competition Law in Europe, Investigations, Telecommunications

The General Court dismissed the appeal by Groupe Canal + against the European Commission’s decision accepting Paramount’s commitments in the cross-border pay-TV investigation (T-873/16 Groupe Canal +). It held that territorial restrictions leading to a partitioning of the internal market could be considered as by-object infringements of competition law, thereby rejecting arguments of copyright law and cultural diversity as a justification under the facts in this particular case.

“Four-to-three” mergers no longer taboo? The Commission unconditionally approves the acquisition of Tele2 NL by T-Mobile NL

By Kevin Coates, Geoffrey Kalantari and Jonathan Benjamin on December 20, 2018 Posted in Competition Law, Competition Law in Europe, Mergers, Telecommunications

In November 2018, following an in-depth Phase 2 investigation, the European Commission (“Commission”) unconditionally approved the acquisition of Tele2 NL by T-Mobile NL, respectively the fourth and third largest players in the Dutch retail mobile telecoms market. The merged entity remains the third largest player in this market after KPN and VodafoneZiggo. This transaction is the first “four-to-three” telecom merger approved without remedies under Commissioner Vestager’s term, following earlier Commission decisions on four-to-three mergers in (i) H3G/Wind, where approval of a joint venture was conditional on the divestment of sufficient assets to allow a new MNO to enter the market; and (ii) Three/O2, an acquisition that was blocked by the Commission. It shows that there is no “magic number” for players in the telecoms market and that much will depend on the specifics of the merger.

The (Developing) History of Cartels – A Conceptual Waterloo

By Siobhan L.M. Kahmann on December 18, 2018 Posted in Antitrust, Cartels, Competition, Competition Law, Competition Law in Europe, Hub and Spoke, Signalling

With a musical ABBA twist, Johan Ysewyn presented the evolution of the cartel concept in the EU at the Chillin’ Competition Conference on 20 November 2018 in Brussels.

Click here to watch the full presentation by Johan. Continue Reading

Sights on Online Search Advertising: FTC Finds Practices by 1-800 Contacts to Unlawfully Harm Competition and Restrict the Availability of Truthful Advertising to Consumers

By Rebecca Yergin on December 15, 2018 Posted in Antitrust, Competition, Enforcement, Retail

Last month in In the Matter of 1-800 Contacts, Inc., the Federal Trade Commission (“FTC”) provided insight into the circumstances under which retail price competition may take place in the 21st century internet economy. In the Opinion authored by Chairman Joseph J. Simons (“Commission’s Opinion”) the Commission decided that 1-800 Contacts, the country’s largest online retailer of contact lenses, unlawfully entered into anticompetitive agreements with 14 rival online sellers (“Agreements”). The Agreements, which, in most cases were trademark litigation settlements, required the parties, when bidding as part of search engine advertising auctions, to take measures ensuring their advertisements do not appear in response to searches for the other party’s trademark terms. According to the Commission’s Opinion, approved 3-1-1, the “decision will affect not only the price that consumers pay for some contact lenses but also the very manner in which substantial parts of price competition will occur throughout consumer markets today and tomorrow.” This week, 1-800 Contacts filed an application with the FTC for a partial stay pending review by the U.S. Court of Appeals.

UK Government and CMA research whether online customers are targeted through personalised pricing

By Kevin Coates, Kim-Simone Janutta and Spyridon Goulielmos on December 10, 2018 Posted in Abuse, Antitrust, Artificial Intelligence (AI), Competition Law, Competition Law in Europe, Dominance, E-Commerce

On 4 November 2018, the UK government and the Competition and Markets Authority (“CMA”) issued a press release confirming that they will examine the practices of retailers that target online consumers and charge them different prices for the same product through personalised pricing. Their research will cover a range of products sold online “such as holidays, cars and household goods”. The announcement is unsurprisingly silent as to whether legislative changes or changes to the CMA’s enforcement policy will result.

This is the latest in a line of UK government and CMA initiatives regarding personalised pricing. On 31 October 2018, the Financial Conduct Authority (“FCA”) announced an investigation into personalised pricing for motor and home insurance policies after finding that insurance companies were price discriminating between customers; and on 8 October 2018, the CMA published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalised pricing’ (see our recent Covington Competition Blog post).

A refusal to make a ‘Collective Proceedings Order’ in England can be appealed

By Elaine Whiteford on November 28, 2018 Posted in Antitrust, Competition, Competition Law, Competition Law in Europe, Damages, United Kingdom

In its 13 November 2018 judgment in Merricks v MasterCard, the English Court of Appeal (the CA) determined that a refusal by the Competition Appeal Tribunal (CAT) to grant a Collective Proceedings Order (CPO) can be appealed to the Court of Appeal.

A CPO is the order by which the CAT authorises a class representative to act as such in the collective proceedings action and sets out certain basic details, such as the parties’ names, the definition of the class (and any sub-class), the common issues to be determined and the remedy sought. Without a CPO the collective action cannot proceed.

The CA concluded that the refusal of a CPO is likely to prevent individual members of the represented class who have suffered loss from obtaining any compensation. Consequently, it concluded that in substance, a refusal of a CPO is a decision as to the award of damages within the meaning of the Competition Act 1998 (CA98), which can, consequently, be appealed to the Court of Appeal.

Advanced Competition Law Conference Brussels – Joint Presentation on Recent EU Cartel Enforcement

By Laura Corbett on November 27, 2018 Posted in Competition Law, Competition Law in Europe, Enforcement, Investigations

On 20 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual presentation at the Advanced EU Competition Law Conference in Brussels. Their presentation covered their now-traditional three pillars: enforcement, policy and court review. Continue Reading

Land agreements rise up the CMA’s agenda

By Siobhan L.M. Kahmann and Elaine Whiteford on November 8, 2018 Posted in Antitrust, Competition, Competition Law, Enforcement, Investigations, Land Agreements, United Kingdom

In October, the UK’s Competition and Markets Authority (CMA) imposed a fine of 1.6 million GBP for a land agreement which it found to infringe competition law. This is the first time that the CMA has taken enforcement action and issued a fine in relation to a land agreement, despite such agreements having been covered by the Chapter 1 prohibition (the UK equivalent of Article 101 TFEU) since 2011. The imposition of the fine, together with increased activity by the CMA in this sector, suggests that undertakings with land agreements should carefully check their compliance with competition law. Whatever “grace to adapt” has been afforded to businesses by the CMA since the change in the law has clearly come to an end.

The CMA’s Paper on Pricing Algorithms, Collusion and Personalised Pricing

By Miranda Cole and Jérôme de Ponsay on November 5, 2018 Posted in Antitrust, Artificial Intelligence (AI), Competition, Competition Law, Competition Law in Europe, Digital, E-Commerce, Internet of Things (IoT), Technology, United Kingdom

On 8 October 2018, the UK Competition and Markets Authority (“CMA”) published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalized pricing’ (the “Paper”). It follows a number of other initiatives from competition authorities regarding algorithms, including the recent German Monopolies Commission’s proposals regarding pricing algorithms, which was the subject of a Covington Competition Blog post. The CMA’s analysis reflects input from algorithm providers, other competition authorities, and the results of the CMA’s findings from pilot tests. The Paper is economic rather than legal in focus, and assesses the extent to which various algorithm models have the potential to affect competition.