Luxury Goods Manufacturers May Block Certain Online Sales on Third-Party Platforms

By Jennifer Boudet, Miranda Cole and Gemma Nash.

On 6 December 2017, the Court of Justice of European Union (CJEU) issued its long-awaited Judgment in Coty Germany GmbH v Parfümerie Akzente GmbH.  Taking an approach similar to that adopted by Advocate General (AG) Wahl in his Opinion in July, the CJEU found that a supplier of luxury goods may prevent its authorised retailers from using third-party platforms in a “discernible” manner to sell its products, in order to preserve the products’ luxury image.

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E-Commerce in the EU, Covington & Laurence Simons General Counsel Seminar

On 30 November, Covington and Laurence Simons co-hosted a seminar on e-commerce in the EU for a variety of General Counsel from different industries.  E-commerce continues to grow rapidly in Europe and is expected to be worth more than €600 billion in 2017.  In this context, companies already active in the EU, or wishing to enter the European market, must familiarise themselves with the potential legal challenges ahead of them.

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Key Conclusions – Cartels: Lessons from Recent Investigations, Brussels Advanced Competition Law Conference

On 22 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual dual-presentation at the Advanced EU Competition Law Conference in Brussels.  They covered their traditional three pillars of enforcement, policy and court review.

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Covington’s Net Neutrality and Zero-Rating Webinar

On 20 November, Covington hosted its webinar looking at developments in Net Neutrality and Zero-rating from both a US and a European perspective. Our presenters included ex-FCC Bureau Chief, Partner Matt DelNero from our DC office, and ex-DG Competition Head of Unit, Partner Kevin Coates and Senior Associate Siobhan Kahmann from our Brussels office. The webinar was well attended, with participants from all major jurisdictions around the world.

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The Vestager Tenure : Mid-Point or Turning Point?

We are now well past the mid-point of Commissioner Vestager’s tenure as European Commissioner for Competition.  Let us assume that – as with all of her predecessors, and regardless of merit – she will not be reappointed for a second term in the post, so that by the end of 2019 we will have a new Competition Commissioner.

What this means, among other things, is that if an antitrust or State aid case has not yet started, then it is in practice impossible to finish it within her term.  That means that the Commissioner’s margin of manœuvre in establishing a legacy is mostly limited to the cases that we already know about.

So what do we know about Commissioner Vestager – and can we start predicting what the next two years of competition enforcement will look like?

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The Bundeskartellamt Publishes a Paper on Big Data and Competition

On 6 October 2017, the German Competition Authority (the “FCO”) launched a new series of papers on “Competition and Consumer Protection in the Digital Economy” with its first paper on “Big Data and Competition” (available in German) (the “Paper”). The FCO sets out its view of the specific characteristics of digital, data-based markets, the role data may play in the competitive analysis of such markets and the importance of data protection in competition law proceedings. Continue Reading

The German Competition Register – a new animal in the jungle of EU Member States’ competition laws

On 29 July 2017, the new German Competition Registry Act (Wettbewerbsregistergesetz – WRegG) became effective. Organisations offering public tenders worth EUR 30,000 or more will have to check the register to verify whether participating undertakings are excluded from public procurement because of past offences. The new register will be hosted by the Federal Cartel Office (Bundeskartellamt – BKartA) and has to be implemented by 2020 latest.

According to press reports (PaRR of 26 September 2017), a senior official of the BKartA, indicated that the BKartA is now planning a directive on the register’s standards and procedures.

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Price comparison websites: The UK’s CMA weighs in on the competition law, data protection and consumer protection requirements

The UK’s competition regulator, the Competition and Markets Authority (CMA), has published a 349 page Final Report (combined with 5 Background Papers and a glossary) on its Market Study into what it refers to as Digital Comparison Tools (DCTs) – a term which includes price comparison websites, best buy tables, and other more automated services like matching services which analyse complex usage patterns, voice-based comparison tools, and reverse auction platforms. The CMA concluded that consumer experiences of these services were mostly positive, although there were concerns over:

  • Competition law implications of exclusive or preferential arrangements;
  • Data protection law and the use of personal data;
  • Consumer protection law and the transparency of arrangements between these sites and the services that they are comparing.

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Welcome clarifications by the EU Court on the concept of excessive pricing

On 14 September, the Court of Justice of the European Union provided detailed guidance on the concept of excessive pricing under Article 102 TFEU, in response to questions posed by the Latvian Supreme Court.

In Case C-177/16, the Latvian Supreme Court referred a number of questions to the Court of Justice of the European Union (CJEU) regarding the concept of excessive pricing.

This resulted from a series of appeals relating to a decision that the Latvian Competition Council (LCC) took over conduct of the Consulting agency on copyright and communications / Latvian authors’ association (AKKA/LAA), the Latvian collective management organisation handling copyright licences for (Latvian and foreign) musical works in Latvia. The 2013 infringement decision found that the AKKA/LAA had abused its dominant position by imposing excessive music licence fees for music played in Latvian retailers and service providers. Continue Reading

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