Introduction

On 25 May 2020, the European Commission (“Commission”) has published its Final Report of the support studies for the evaluation of its Vertical Block Exemption Regulation (“VBER”) and the accompanying Guidelines on Vertical Restraints (the “Final Report”). The Final Report was published following a public consultation from 4 February to 27 May 2019 to gather views on the VBER’s functioning in the digital age. This was inspired by the growing importance of e-commerce and the interest in various online companies. This evolution has affected distribution and pricing strategies for both manufacturers and retailers, which the Commission decided warranted an evaluation of some of the current rules.
Continue Reading The revision of the Vertical Block Exemption Regulation – What is likely to change?

After her confirmation hearing in front of the European Parliament on Tuesday 8 October, Magrethe Vestager looks certain to remain as Competition Commissioner for a second term and to combine that with a broader responsibility for digital policy development. Both the second term and the combination of the competition portfolio with a policy brief are unprecedented in recent decades.

Several key points, including the way in which she intends to manage digital matters and a potential conflict of interest, emerged from the hearing.


Continue Reading Vestager outlines portfolio plans in European Parliament confirmation hearing

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 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 the 10th October 2018, BEREC (the Body of European Regulators for Electronic Communications) launched its public consultation on the ‘Data Economy’. This comes at a time when different regulators are increasingly discussing the importance of big data, including the opportunities and risks that it brings about, how these may evolve, and how (and increasingly who should take the responsibility) to regulate. While the data protection and competition authorities have so far been most vocal in this deepening regulatory debate, the opening of this consultation represents a clear and decisive move by European telecom regulators to ‘throw their hat’ into the ring and get included in the discussion – and potentially future regulation – of Europe’s data economy.

All interested stakeholders, including public organisations, industry actors, consumers, associations, academics, financial advisers, and other stakeholders with expertise or interest in the data economy are strongly encouraged to have their say. BEREC’s consultation video can be accessed here, and the consultation is open until 21 November 2018.


Continue Reading IoT Update: BEREC launches public consultation on the ‘Data Economy’

The European Commission (“Commission”) recently fined Denon & Marantz, Asus, Pioneer and Philips (the “Individual Parties”) a total of EUR 111 million for restricting the ability of online retailers to set retail prices for their products – a hard-core restriction under EU competition law known as “resale price maintenance” or “RPM” (the “Infringement Decisions”). These Infringement Decisions are noteworthy because: (i) they are the first e-commerce infringement decisions since the Commission’s 2017 Final Report on its e-commerce sector inquiry; and (ii) the last ‘traditional’ RPM fine imposed by the Commission was fifteen years ago in Po/Yamaha COMP/37.975 (16 July 2003).

Continue Reading The European Commission Publishes Summary Decisions for On-line Resale Price Maintenance Infringements

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?

The UK’s Competition and Markets Authority (the “CMA”) published its proposed “Annual Plan 2018 to 2019” for public consultation last month. Respondents have until January 14 2018, to respond as to whether they agree with the overall direction of the proposed Annual Plan, whether they believe there is anything more that the CMA should be doing or whether there is anything that the CMA should de-prioritise in 2018/19.

We note below some interesting take-away points from the proposed Annual Plan.


Continue Reading The UK’s CMA Consults on its Proposed Annual Plan 2018/19