In his State of the Union address last week, President Biden declared that he wants to: “strengthen privacy protections, ban targeted advertising to children, and demand tech companies stop collecting personal data on our children.”  This statement comes just a couple of weeks after Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) introduced the Kids Online Safety Act.  That legislation, together with the Senate Judiciary Committee’s consideration of the EARN IT Act, a bill aimed at protecting children from online sexual exploitation, gives Congress several options to focus on the internet and child safety—now with the President’s blessing.

The timing of the President’s declaration is important because the number of days available for Congress to take legislative action is shortening as the midterm elections approach.  Though Congress has already held several hearings about online platforms, particularly in the Judiciary Subcommittees with jurisdiction over antitrust, now remains an important time for stakeholders to engage in the discussion.  After the President’s address, the U.S. Senate is almost certainly laying the groundwork for what it would call a larger “tech accountability” package.

Continue Reading Is the U.S. Congress Preparing a “Tech Accountability” Package?

On 9 December 2021, Advocate General (“AG”) Rantos delivered his Opinion in Servizio Elettrico Nazionale (Case C‑377/20), a request for a preliminary ruling from the Italian Consiglio di Stato. The case concerns the conduct of the ENEL Group (“ENEL”) in the context of the liberalisation of the electricity market in Italy. ENEL, the incumbent, allegedly used customer data obtained before liberalisation to make offers to customers in order to “transfer” them to its operator active on the liberalised market, seeking to prevent the large-scale departure of customers.

Continue Reading Advocate General Rantos Provides Sound Guidance for Non-Pricing Abuse of Dominance Analysis (Case C-377/20)

On 19 January 2021, the 10th amendment of the German Act against Restraints of Competition (“ARC”), the so-called ARC Digitisation Act (the “ARC-DA”) entered into force. The ARC-DA brings far-reaching amendments to German competition law, containing inter alia

  • the introduction of a new framework to intervene in the digital sector and a revision of the rules on abuse of dominance including enhanced rules for access to data;
  • significant increases of merger control notification thresholds applicable across industries; and
  • a number of further substantial amendments including a codification of the FCO’s leniency program, the implementation of the European Commission’s ECN+ Directive introducing new powers of the Federal Cartel Office (“FCO”) in the context of inspections, and changes concerning cartel damage claims.

In this blog-post we focus on three core developments: (i) novel powers for intervention in digital markets, (ii) the additional basis for data access claims and (iii) the core amendments to the merger control regime.
Continue Reading Germany: The wind of change – Substantial competition law amendments

Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”.  The UK Court of Appeal recently provided guidance regarding the legal test to determine whether pricing is excessive and unfair.  In March, it dismissed the UK Competition and Markets Authority’s (“CMA”) appeal in the Phenytoin case.
Continue Reading The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing

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).

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

On 25 September 2018, Covington’s Johan Ysewyn and Jim O’Connell will speak on cartels and merger enforcement, respectively, at the 12th Annual Georgetown Global Antitrust Enforcement Symposium in Washington DC.

This Symposium serves as a leading forum for in-house and outside counsel, policymakers, corporate executives, economists and academics to discuss the most recent issues in competition law and policy.
Continue Reading 12th Annual Georgetown Global Antitrust Enforcement Symposium – Debating the Latest Issues with Covington’s Johan Ysewyn and Jim O’Connell

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