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Miranda Cole is a partner based in the firm’s Brussels office.  She practices competition and communications law and policy, and has more than 15 years of experience in the field.  Ms. Cole’s competition law expertise encompasses merger control, actions under Articles 101 and 102 TFEU, advisory work and actions before the European courts in Luxembourg.

She has particular expertise in advising companies active in the technology and communications sectors in complex and strategic regulatory and policy matters, with particular expertise regarding the impact of evolving regulatory frameworks on new technologies and services.  In the communications sector she has extensive experience advising in connection with all aspects of European and international regulation, policy and competition law, and counselling in connection with the impact of regulation on transactions.

On 22 April 2020, the UK Competition and Market Authority (“CMA”) published its guidance on ‘Merger assessments during the Coronavirus (COVID-19) pandemic’ (“the guidance”). Prior to the publication of the guidance, there was some speculation about whether the CMA would be more willing to accept ‘failing firm’ arguments as the economic impact of COVID-19 hit home. However, while the CMA has, as it acknowledged, “been working closely with the government to relax competition law where appropriate”, the guidance and a number of recent CMA cases make it clear that the CMA is not relaxing its merger assessments in response to COVID-19.

Continue Reading The CMA’s Guidance on Merger Assessments During the Coronavirus (COVID-19) Pandemic and Recent CMA Cases

In his speech in Austin, Texas in 2019[1] and subsequent interviews,[2] the Chairman of the French Electronic Communications and Postal Regulatory Authority (ARCEP) and former general rapporteur at the French Competition Authority, Sébastien Soriano, suggested that it is no longer appropriate to apply the “Schumpeterian paradigm” to technology companies that he characterised as having reached “… a critical size making it unlikely that external innovation will reverse the situation”.

Since then, Mr. Soriano has spoken about addressing the market power of “prevailing platforms”(“plateformes structurantes”). Last week, ARCEP defined “prevailing platforms” in a strategic note “Prevailing digital platforms – Elements of reflection relating to their characterization”.[3] This strategic note effects the shift in approach that Mr Soriano proposed.

Taking into account the current definitions of digital platforms, ARCEP has defined “prevailing digital platforms” as follows:

online platform operators or operating system providers which, in particular because of their intermediation activity in accessing internet services and content, and because of their importance, are able to significantly limit the ability of users to engage in economic activity or communicate online”.

To determine whether a given operator falls within this definition, ARCEP has set out a set of indices (partly based on the criteria used by the European Commission to characterise operators with significant market power in the electronic communications sector).
Continue Reading The French telecoms regulator has entered the fray “prevailing digital platform”

On 16 January 2019, the European Court of Justice (“ECJ”) rejected the European Commission’s (“Commission”) appeal in Commission v. UPS. The judgment followed Advocate General Kokott’s Opinion of July 2018, and upholds the 2017 judgment of the General Court (“GC”) annulling on procedural grounds the Commission’s decision prohibiting the acquisition of TNT by UPS.

Continue Reading EU Court Confirms the Annulment of the European Commission’s Decision Prohibiting the UPS/TNT Transaction

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.

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

On August 24, 2017, the UK’s Competition and Markets Authority (“CMA”) fined Ping Europe Limited (“Ping”) £1.45 million for breaching UK and EU competition law by instituting a ban on online sales of Ping golf clubs.  Ping challenged the CMA’s decision before the Competition Appeal Tribunal (“CAT”).  On September 7, 2018, the CAT dismissed the appeal, but reduced Ping’s fine.

Continue Reading CAT upholds Ping’s fine: lessons on online sales bans

On April 25, 2018, the European Commission (EC) published its “Artificial Intelligence for Europe” communication (the Communication), in which it sets out a roadmap for its AI initiatives. Having acknowledged the crucial need for a boost of AI in the EU, the EC commits to supporting investment, (re)considering legislation and soft law initiatives, and coordinating Member States’ efforts. This blog post highlights some of the EC’s initiatives.
Continue Reading Covington Artificial Intelligence Update: European Commission Publishes Communication on Artificial Intelligence for Europe

Reflecting evidence from 280 witnesses from the government, academia and industry, and nine months of investigation, the UK House of Lords Select Committee on Artificial Intelligence published its report “AI in the UK: ready, willing and able?” on April 16, 2018 (the Report). The Report considers the future of AI in the UK, from perceived opportunities to risks and challenges. In addition to scoping the legal and regulatory landscape, the Report considers the role of AI in a social and economic context, and proposes a set of ethical guidelines. This blog post sets out those ethical guidelines and summarises some of the key features of the Report.
Continue Reading Covington Artificial Intelligence Update: House of Lords Select Committee publishes report on the future of AI in the UK

On 19 April 2018, the Court of Justice of the EU (CJEU) issued its judgment in MEO vs Autoridade da Concorrência, providing guidance as to what amounts to “competitive disadvantage”, an important element required to show abusive price discrimination under Article 102 of the Treaty on the Functioning of the EU (TFEU).  The CJEU found that there is no need for proof of “actual, quantifiable deterioration in the competitive situation” of the customer, if an analysis of the relevant circumstances demonstrates that discrimination distorts competition.

Continue Reading EU Court’s Analysis of “Competitive Disadvantage” in Rare Price Discrimination Case

On 29 January, Covington hosted its webinar on the ECJ’s Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato judgment.  Miranda Cole discussed the potential implications of this judgment for market definition, field of use licences and indication-based pricing.  The full presentation can be found here.

The Italian Council of State referred

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 Bundeskartellamt Publishes a Paper on Big Data and Competition