Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In part three, James Marshall and Sophie Albrighton discuss digital markets, one of the key areas of focus of competition authorities around the world today, including in the UK. They are joined by guest speaker Martin Hansen, Of Counsel in Covington’s Technology Regulatory and Policy practice based in London.

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The Competition and Markets Authority (“CMA”) is consulting on its proposed recommendation to the Secretary of State for Business, Energy and Industrial Strategy to replace the retained Vertical Agreements Block Exemption Regulation (“retained VABER”) with a new UK Vertical Agreements Block Exemption Order (“VABEO”).

The retained VABER is the European Commission Regulation No 330/2010, which was incorporated into UK law when the UK left the EU.  The retained VABER currently provides a safe harbour for a wide range of vertical agreements, subject to certain thresholds being met. It expires on 31 May 2022 and is under review for replacement by the European Commission. Following Brexit, businesses will not benefit from any replacement to the VABER at EU level in relation to their UK activities.  The CMA has therefore consulted with businesses, industry associations and professional advisers to consider whether a UK-specific equivalent is required.  Following this initial consultation process, the CMA recommends introducing a UK-specific equivalent VABEO from 1 June 2022. Continue Reading What you need to know about the CMA’s consultation on the Retained Vertical Agreements Block Exemption Regulation

Introduction

The wide understanding of the notion of “undertaking” affords the European Commission (“Commission”) broad discretion when identifying the entities liable for competition law infringements, enabling it to attribute liability to all companies that constitute a single economic unit, such that a parent company can be liable for the wrongdoings of its subsidiary. The Commission also relies on the principle of economic continuity to establish liability when corporate groups are reconstructed.

With the increase of private competition law enforcement, the question arises whether individuals may rely on these concepts when establishing liability in private lawsuits. The recent Sumal and Skanska cases confirm that EU Courts are in favour of extending the doctrine of “undertaking” to private damages claims. In his opinion of 15 April 2021 in Sumal, Advocate General (“AG”) Pitruzzella  proposes that a national court can order a subsidiary to pay compensation for the harm caused by anticompetitive conduct of its parent company. In March, the CJEU decided, in Skanska, that the principle of economic continuity applies in the context of follow-on damages claims. Continue Reading EU Courts extend the doctrine of “undertaking” to private claims for damages

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In part two, James Marshall and Sophie Albrighton focus on current trends in enforcement and litigation. They are joined by guest speaker Louise Freeman, co-chair of Covington’s Commercial Litigation and European Dispute Resolution Practice Groups, who has extensive experience representing parties in significant competition litigation proceedings, including a number of the leading cases in England.

Pressed for time? Click here to download this session’s key takeaways.

The UK Competition Appeal Tribunal (“CAT”) has made it more difficult for defendants in follow-on competition damages claims to plead that a claimant has mitigated any overcharge by reducing the costs paid to other suppliers in a recent judgment (“Royal Mail/BT v DAF”). Continue Reading UK Competition Appeal Tribunal adds a hurdle to reliance on the pass-on defence

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In the first part, James Marshall and Sophie Albrighton focus on current trends in merger control. They are joined by guest speaker Louise Nash, Corporate Partner in Covington’s London office with over 20 years’ experience of global acquisitions, divestitures and complex commercial transactions.

No time to watch? Click here to download this session’s key takeaways.

On 27 April 2021 the German government adopted the 17th amendment (“Amendment”) to the Foreign Trade and Payments Ordinance (“AWV”) aligning the German Foreign Direct Investments (“FDI”) regime with the EU Screening Regulation. The Amendment significantly extends the number of sectors and target activities that require mandatory notification in Germany and brings significant procedural changes and clarifications. The revised Ordinance entered into force on 1 May 2021 and will apply to all transactions signed thereafter.

The Amendment follows a series of prior legislative changes. In light of the COVID-19 pandemic, the German government previously adopted the 15th AWV-Amendment in June 2020, which introduced far reaching filing obligations in the healthcare sector. Subsequently, the first amendment of the Foreign Trade and Payments Act introduced standstill obligations backed by fines and criminal charges in July 2020. Together with the 16th AWV-Amendment in October 2020 the German FDI regime was also aligned with the requirements of the EU Screening Regulation.

Our blog provides an overview of the German FDI regime and highlights the key changes introduced by the Amendment. Continue Reading Technology Sector under Closer Scrutiny – German Government Significantly Extends the Scope of Foreign Direct Investment Review in Germany

Companies that benefit from non-EU state support or subsidies will soon face heightened scrutiny in the European Union (EU) as the European Commission unveiled on May 5 its proposed Regulation on foreign subsidies distorting the internal market.  As its name suggests, the proposed Regulation will create a new tool to address what the European Commission sees as a “regulatory gap” in avoiding potential distortions caused by companies receiving non-EU subsidies and ensuring a “level playing field” in the EU.  Perhaps emblematic of its perceived importance at a time where calls from Member States to tackle potential distortive foreign investment have multiplied, it took the European Commission less than a year from the publication of the White Paper on levelling the playing field with respect to foreign subsidies to analyze the results of its public consultation and to put this proposal to the EU legislator.

The proposed Foreign Subsidies Regulation is wide-ranging and will apply in addition to the existing merger control and Foreign Direct Investment screening mechanisms.  Given the strong support it has received from most Member States and European industry bodies, it is widely anticipated that this new tool will be written into law without material change.

Here is what foreign companies that receive any form of non-EU public support and are active or considering deals involving the EU need to know, and prepare for. Continue Reading More scrutiny to come in the EU for companies that receive non-EU subsidies

On Wednesday 28 April, the UK Parliament adopted the National Security & Investment Law (“NS&I Law”).  The law received Royal Assent the following day and will come into legal effect in late 2021.

The NS&I Law will introduce mandatory notification and pre-clearance requirements for transactions in 17 ‘core’ sectors.  This long-awaited piece of legislation, has passed through Parliament substantially un-amended, except that the investment threshold for mandatory notification has been raised from the acquisition of a 15 per cent. to 25 per cent. interest in shares or voting rights in an acquisition target. The UK Government retains extensive discretion to “call-in” investments for review, both within and outside the 17 ‘core’ sectors, including (i) acquisitions of control of assets and (ii) equity investments below the 25% threshold where “material influence” is acquired, if it reasonably suspects that a transaction gives rise to national security risks. Continue Reading UK National Security & Investment Law is Approved by Parliament

On 18 March 2021, the Court of Justice of the European Union (“CJEU”) largely dismissed the appeal by Pometon against the General Court’s (“GC”) judgment, which previously partially dismissed Pometon’s appeal against the European Commission (“Commission”) steel abrasives cartel decision. Continue Reading The CJEU accepts the principle of staggered hybrid cartel settlements in Pometon