Our webinar series on the European Commission’s draft guidelines on Article 102 is now available on demand here. The series, hosted by Kevin Coates, a former European Commission head of unit and an antitrust partner in Covington’s Brussels office, is in three parts. 

In the first webinar, Massimiliano Kadar of the European Commission’s…

Continue Reading European Commission’s draft guidelines on Article 102 – webinar series

Significant changes to the U.S. merger notification regime under the Hart-Scott-Rodino (“HSR”) Act are currently anticipated to go into effect on February 10, 2025, based on an update to the Federal Register publication schedule.

The Federal Trade Commission (“FTC”) announced the Final Rule implementing the changes to the HSR notification form on October 10, 2024…

Continue Reading New HSR Requirements Set to Become Effective on February 10, 2025

On 19 September 2024, the European Court of Justice (“ECJ” or the “Court”) issued a preliminary ruling in response to a request from a Dutch court for clarification, inter alia, on whether wide and narrow price parity clauses in agreements between Booking.com and accommodation service providers constitute an ancillary restriction in the context of Article 101(1) (the “parity question”). In this context, a wide price parity clause restricts a hotel from offering better prices and terms on any other sales channels than it offers to Booking.com. A narrow price parity clause only restricts a hotel from offering better prices and terms on its own direct sales channel.

The ECJ held that price parity clauses in this context – both wide and narrow – are not “ancillary restraints” and therefore will not fall outside the scope of the prohibition against anticompetitive agreements set out in Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”). In particular, the inclusion of a price parity provision in such agreements is not indispensable to the main operation of the agreement – i.e., the operation of Booking.com is not rendered “impossible” without inclusion of the price parity provision. 

Key takeaways

  • Consequently, any price parity provision in a Booking.com agreement must be individually assessed for compliance with Article 101(1). Price parity restrictions may still be compatible with EU competition rules if they either benefit from a safe harbour under the Vertical Agreements Block Exemption Regulation (“VBER”) or qualify for individual exemption under Article 101(3). In practice, wide price parity provisions will not benefit from a safe harbour under the VBER (which treats wide parity restrictions as “excluded”, meaning they require individual assessment), and the bar for demonstrating efficiencies under Article 101(3) is high.    
  • Additionally, in response to a second question from the referring court (the “market definition question”), the ECJ provided guidance on the approach to market definition in assessing the conduct of Booking.com
  • The ruling represents an important development in the context of the assessment of price parity clauses under EU competition rules. The Court’s decision does not mean all price parity provisions will infringe competition law, and any form of price parity could still comply, depending on the facts in each case.  

Continue Reading ECJ’s Preliminary Ruling: Booking.com’s parity clauses are not ancillary restraints

On October 10, 2024, the federal antitrust agencies finalized the most significant changes to the U.S. merger notification regime since the enactment of the Hart-Scott-Rodino (“HSR”) Act in 1976. The Final Rule—which was issued by the U.S. Federal Trade Commission (“FTC”) with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”) (together, “the Agencies”)—will significantly increase the burden on companies whose transactions must be notified to the Agencies pursuant to the HSR Act.Continue Reading FTC and DOJ Announce Final Rule Reshaping HSR Filing Requirements

What are the key take-aways of the mission letter to Teresa Ribera Rodríguez, EVP-designate responsible for EU competition policy?

On 17 September 2024, European Commission (“Commission”) President Ursula von der Leyen (“President”), announced her proposed College of Commissioners (“College”) for her second 5-year term. The Commissioners-designate still need to…

Continue Reading New Commissioner, New Mission, New Policy for Competition?

In the past several months, two state courts in the District of Columbia and California decided motions to dismiss in cases alleging that the use of certain revenue management software violated state antitrust laws in the residential property rental management and health insurance industries.  In both industries, parallel class actions are pending in federal court alleging that the same software products facilitate per se illegal hub-and-spoke price-fixing conspiracies under Section 1 of the Sherman Act.  These two state court decisions may preview how federal courts handle similar questions in the federal cases.Continue Reading State Courts Dismiss Claims Involving the Use of Revenue Management Software in Residential Rental and Health Insurance Industries

The European Court of Justice released its long-awaited judgment1 in the Google Shopping saga last week, finally putting to bed close to fifteen years’ of scrutiny into Google’s practices of favouring its own comparison shopping service (Google Shopping) over rival shopping services.

In its ruling, the ECJ upheld the General Court’s earlier judgment2 which had rejected Google’s appeal over the European Commission’s decision3 to fine it €2.42 billion for abusing its market dominance as a search engine by systematically favouring Google Shopping in its general search results.

The overall outcome of the ECJ’s reasoning in Google Shopping is perhaps unsurprising to competition law practitioners – given the unwavering direction of travel of the case. The ECJ judgment nevertheless raises a number of interesting points and leaves a number of questions unanswered.

Key takeaways

  • Refusal to supply. The judgment confirmed that not every issue of access necessarily requires the application of the Bronner test of refusal to supply. The ECJ found the Bronner doctrine applies in circumstances where a dominant firm refuses to grant a competitor access to infrastructure which it has developed for its own business needs. However, the ECJ ruled that the Bronner test is not applicable in cases where there is no outright refusal of access to infrastructure – but rather access granted on discriminatory terms (such discrimination being assessed under separate forms of potential abuse).
  • Competition not on the merits. The ECJ accepted Google’s arguments that, to establish an abuse of dominance under Article 102, a two-pronged test applies: (i) that actual or potential anticompetitive effects arise from the abusive conduct; and (ii) that the conduct falls outside of “competition on the merits”. However, in assessing the latter requirement, the ECJ rejected Google’s arguments that only circumstances relating specifically to Google’s conduct are relevant to the assessment. Instead, the ECJ held that, in assessing “competition on the merits”, relevant circumstances regarding the characteristics of the market or the nature of competition are capable of characterising the conduct as falling outside of the scope of competition on the merits.
  • Causality and counterfactual. The ECJ maintained that the causal link is one of the essential elements of a competition law infringement and that, as a result, the burden of proof for such causal link (and hence the counterfactual analysis) lies with the Commission. However, the ECJ found that the counterfactual analysis is just one way to establish causality. Where establishing a credible counterfactual may be “arbitrary or even impossible” (para 231), the Commission cannot be required to systematically establish a counterfactual and can rely on other evidence to establish causality.
  • “As-efficient competitors”. The ECJ reiterated earlier case law that it is not the objective of Article 102 to ensure that less efficient competitors remain on the market but also remarked that this statement did not imply that an abuse of dominance finding does not always require a showing that the conduct was capable of excluding an as-efficient competitor. With respect to the AEC test, the Court held that this is just one way to establish an abuse of dominance.

Continue Reading ECJ’s Google Shopping Judgment: The End of a Long Saga

On 3 September 2024, the European Court of Justice (“ECJ”) published its highly-anticipated judgment in Illumina/Grail v Commission (Joined Cases C‑611/22 P and C‑625/22 P) (“ECJ Judgment”), regarding the scope of application of Article 22 of the EU Merger Regulation (“EUMR”).

The ECJ set aside the EU General Court (“GC”) judgment (Case T‑227/21) and ruled that the European Commission (“Commission”) does not have jurisdiction over transactions referred to it by the national competition authorities of EU Member States (“NCAs”) if the transactions do not meet the national thresholds of the referring EU Member States.

Key takeaways

  • Based on a historical, contextual, and teleological interpretation of Article 22 EUMR and the EUMR itself, NCAs cannot ask the Commission to examine transactions which do not meet their national thresholds.
  • Article 22 EUMR provides for a corrective function regarding the allocation of competences between the Commission and NCAs, and is to limit the possibility of multiple parallel notifications, providing legal certainty and facilitating the one-stop shop principle.
  • An amendment of the EUMR thresholds and/or referral rules to capture below-threshold transactions would likely entail a burdensome legislative process and complex negotiations with EU Member States.
  • The Commission can still rely on (i) new thresholds which have by now been introduced in some EU Member States to catch transactions outside the scope of their traditional turnover-based thresholds, and (ii) the possibility for NCAs to review these transactions by means of Article 102 TFEU, which prohibits abuses of a dominant position.

Continue Reading ECJ decides that EU Member States cannot refer below-threshold transactions to the European Commission (Illumina/Grail v Commission)

The European Commission’s draft guidelines on exclusionary abusive conduct by dominant firms under Article 102 TFEU (the “Draft Guidelines”) were published on 1 August 2024. They show a marked change from the 2009 Article 82 [now Article 102] Enforcement Priorities Guidance (the “Priorities Guidance”): economic concepts have largely been replaced with the Commission’s interpretation of the European Courts’ caselaw.

The consultation on the Draft Guidelines is open until 31 October 2024. Practical suggestions rooted in and developing the caselaw appear more likely to influence the Commission’s final version of the Draft Guidelines than statements of economics.Continue Reading From Concept to Precedent: The 2024 Draft Guidelines on Article 102

On August 5, 2024, Judge Amit Mehta of the U.S. District Court for the District of Columbia concluded that Google has monopolized markets for online searches and search text advertising and unlawfully engaged in exclusionary conduct in those markets. Specifically, the court found that Google used revenue sharing agreements with web browser developers, mobile device…

Continue Reading D.C. District Court Finds Google Monopolized Online Search Text Ads Markets