Digital

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

The German Monopolies Commission (Monopolkommission), an independent body advising the German federal government and legislature on competition law and policy, recently published its Twenty-second Biennial Report (“Report”) in which it outlined recommendations to adapt the German legal framework to account for what it characterized as new competition challenges faced by the increasing and irreversible digitisation of many parts of the economy (please see the Summary Report here and Press Release here, both available in English). Of particular interest is the Monopolies Commission’s proposed approach to anti-competitive algorithm-based pricing.
Continue Reading The German Monopolies Commission’s Proposals Regarding Pricing Algorithms

On April 23, the European Commission (“Commission”) opened an in-depth investigation of Apple’s acquisition of Shazam in order to, in the words of Commissioner Vestager, ensure that “music fans won’t face less choice as a result of this proposed merger”. On September 6, 2018, the Commission concluded its investigation, issuing an unconditional clearance.

This story’s protagonists hardly need introduction. Apple is one of the world’s major tech companies, and the provider of the ‘Apple Music’ streaming service. Shazam, in turn, provides a leading music recognition app. However, as is not unusual with consumer-facing apps, Shazam generates relatively little turnover.
Continue Reading Apple / Shazam: Determining the value of data in merger cases

On 9 July 2018, the Economic Affairs Committee of the European Parliament (the “EP”) published a study identifying potential competition law concerns in the financial technology (“FinTech”) sector (the “Study”).
Continue Reading The European Parliament publishes a study on financial technology and competition law

Introduction

On 11 June 2018, the European Commission (“Commission”) published DG Competition’s 2017 Annual Activity Report (“Report”) to provide an overview of its pursuit of its competition policy objectives and enforcement of EU competition rules in 2017.  In its Report, the Commission indicates that it has continued to prioritise competition on the merits and that it has focused interventions in the light of priorities outlined in its Political Guidelines, as well as on promoting competition culture and international cooperation.  The different enforcement areas mentioned in the Report, certain key figures and the Report’s focus on the Digital Single Market are discussed below.Continue Reading European Commission – Annual Activity Report – DG Competition 2017

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

The UK Government’s Department for Business, Energy and Industrial Strategy has just released a 75-page Green Paper on Modernising Consumer Markets, setting out the Government’s main priorities for the digital economy in a post-Brexit Britain. The Green Paper reflects on the current state of consumer markets and regulation, and lays down the key challenges and opportunities which will be the focus of the UK’s regulatory and competitive framework going forward. This poses consultation questions to stakeholders on hot topics in digital markets, including questions on: the adequacy of the current competition rules and privacy protections, supporting consumer-friendly innovation, use of and access to big data, whether personalised pricing should be regulated, sufficiently protecting customers without stifling innovation, and alternative dispute resolution solutions.

It also includes various proposals to ensure new technology and data are used to benefit customers, strengthen national enforcement of consumer rights, modernise the approach taken by regulators, and improve consumers’ access to alternative dispute resolution services. In this Covington blog post, we explore some of the key messages and questions posed by the Green Paper.Continue Reading The UK Government Seeks Views on the Regulation of Digital Markets for a Post-Brexit Great Britain

In its decision of 12 December 2017, the German Federal Supreme Court (Bundesgerichtshof – BGH) dismissed ASICS’ application to appeal the 2017 judgment of the Düsseldorf Higher Regional Court (OLG) on alleged online sales restrictions.  The BGH confirmed that prohibiting the use of price comparison websites by retailers constitutes a hardcore restriction under EU competition law.

In 2015, the Federal Cartel Office (Bundeskartellamt – BKartA) found that ASICS’ selective ‘retail system 1.0’ (the system was launched as “Vertriebssystem 1.0”) contained hardcore restrictions  under Article 4(c) of the Vertical Block Exemption Regulation (VBER).  By introducing retail system 1.0, ASICS had allegedly requested approximately 2,000 retailers to refrain from advertising ASICS’ products via price comparison websites and prohibited the use of its brand names on third party websites redirecting customers to retailers’ online shops.Continue Reading German Bundeskartellamt’s Decision against Online Sales Restrictions by ASICS Ultimately Confirmed

The European Commission published its highly anticipated Communication Setting out the EU approach to Standard Essential Patents at the end of 2017, as part of a package to protect Europe’s know-how and innovation leadership (see Commission Press Release Intellectual property: Protecting Europe’s know-how and innovation leadership).

The first section proposes concrete measures to improve the transparency of standard essential patents (SEPs) exposure.  Whether or not the proposed measures are useful, it is not clear what impact they will have on the market as there is no legislative force behind them.

The second section, eagerly awaited by competition SEP specialists, deals with the interaction of SEP holders and licensees, and in particular the persistently hot topic of FRAND licensing and SEP enforcement. This section may be disappointing for those who were hoping for guidance on some of the more difficult aspects of SEP licensing terms.  While widely debated and lobbied between patent holders and users in the run up to its release, the Communication is silent on two key issues – “use-based licensing” and “licensing to all”.Continue Reading The EU Commission Communication on SEPs: a workable resolution to patent wars in the EU, or more competition litigation battles ahead?