Stibbe | 2022: the big reveal of 2021’s competition law promises

2021 was riddled with sneak previews of a “review of competition policy tools with unprecedented scope and ambition”. These sneak previews, alongside 2021’s other competition law developments, seem to point in the direction of a more ‘social’ side to competition law in 2022, as well as looming Big Tech and Big Pharma battles, intensified (international) cooperation, more clarity on merger-related obligations for companies, and shiny new vertical and horizontal block exemption regulations. 2022 will reveal how and when the revised tools will materialise.

Towards a more ‘social’ side to competition law

Many competition authorities have been looking at ways to go green in 2021. Sustainability arguments have trickled through in merger control assessments and agricultural sustainability arrangements. The Commission’s decision against five car manufacturers for having colluded on emissions technology standards (see our August 2021 newsletter) can be regarded as the build-up to more focused antitrust guidance in the European Commission’s revised guidelines on horizontal cooperation agreements (to be published by Q4 2022). The only potential let-down in the Commission’s revised horizontal guidelines may be that they will contain a less far-reaching approach than was proclaimed by national competition authorities (see our October 2021 newsletter). Even so, it will be a big step towards a more social (and green) feel to competition law.

Similarly, competition authorities seem to have taken (both employed and self-employed) worker conditions to heart; not only by taking account of employment conditions in their merger assessments (see our February 2020 newsletter), but also through an increased focus on wage-fixing and no-poach agreements (see our November 2021 newsletter) and boosting the working conditions of solo self-employed persons. The Commission’s draft Guidelines for solo self-employed persons encourages collective bargaining in a similar fashion to the ACM’s earlier guidelines (see our February 2020 newsletter).

Big Tech and Big Pharma battles

In anticipation of the Digital Markets Act (en route in the legislative train; see our December 2020 article), the Commission and national authorities are keeping Big Tech in check through individual investigations. Their confidence in their investigations’ outcomes may have received a considerable boost when the General Court upheld the Commission’s Google Shopping decision (see our December 2021 newsletter). However, rulings by the European and Dutch courts in ‘regular’ abuse of dominance cases will have tempered any inflated expectations (see our April 2021 and June 2021 newsletters).

More Big Tech reveals are likely in 2022. European Court rulings are upcoming in Google Android and Intel, with the anticipated rulings in Qualcomm and Servizio Elettrico Nazionale to shed more light on abuse cases in general. The Commission has opened investigations into Apple (three cases), Amazon, Facebook and Google and sent statement of objections to Amazon and Apple, while the German, Italian and Dutch competition authorities are also looking into the conduct of one or more of these companies. These parallel procedures are prone to raise questions on double jeopardy and jurisdiction. Even though the Dutch Competition Authority has already stated that it considers itself qualified to look into the Apple case in parallel with the European Commission, the European Courts’ rulings in Nordzucker (double jeopardy questions) and Amazon (admissibility appeal against parallel procedures) are bound to shed more light on these issues.

The Lundbeck ruling provided Big Pharma guidance on the antitrust assessment of patent settlement agreements (see our April 2021 newsletter), but more is yet to come. The appeal by Servier against the General Court’s ruling is still pending, and an antitrust investigation into Teva is ongoing. Excessive pricing investigations were finalised in 2021 by the ACM with its first-ever excessive pricing fine in pharma, and by the Commission with Aspen’s excessive pricing commitments (see our August 2021 newsletter).

(International) Cooperation

Globalisation and developments in, inter alia, Big Tech and Big Pharma have strengthened the call for greater cooperation between regulators. More intensified cooperation is on its way.

An EU-US Joint Technology Competition Policy Dialogue aims to strengthen cooperation on competition policy and enforcement in the technology sector. At national level, the ACM, together with the Data Protection Authority (AP), the Financial Markets Authority (AFM) and the Media Authority (CvdM) have established the Digital Regulation Cooperation Platform for a firmer grip on the digital landscape.

A Multilateral Working Group of competition authorities will exchange best practices on pharmaceutical mergers, and cooperation among the EU competition authorities will intensify as a result of the Commission’s ‘Article 22 upward referral’ guidance to catch green, digital and pharma ‘killer acquisitions’ (see our October 2020 newsletter). The General Court’s eagerly awaited ruling on Illumina is likely to form the grand finale of this cooperation competence conundrum (see our May 2021 newsletter).

Merger-related obligations

Illumina’s “unprecedented” early acquisition of GRAIL was reason for the Commission to impose interim ‘hold separate’ measures (see our December 2021 newsletter), providing further proof – and a clear warning – of the Commission’s tough stance on gun jumping and the provision of misleading information (see our June 2021 newsletter). The Commission is unlikely to back down from actively policing these procedural mishaps in 2022, given the General Court’s upholding of its record-breaking gun jumping fine for Altice (see our October 2021 newsletter).

All the more reason for companies to realise that there are more procedural rules than only the notification and standstill obligations in the EU Merger Regulation to keep in mind when considering a merger or acquisition. Companies are wise to add the screening of foreign direct investments and foreign subsidies to their M&A checklists (see our June 2021 and August 2021 newsletters). The Commission’s promise to further simplify its merger control procedures (to be adopted by Q4 2022) may prove to be a (cold) comfort for this increase in the administrative burden for companies.

Verticals and territorial restraints

The Commission’s 2021 cross-border sales crusade is likely to continue unfazed in 2022. Fines were imposed on gaming companies for geo-blocking and an investigation into potential parallel trade restrictions by Mondelĕz is still ongoing (see our February 2021). The ACM has joined the vertical restraints party by shaking off its more liberal approach once and for all with its first-ever vertical price coordination fine on Samsung Electronics (see our October 2021 newsletter) with more vertical restraints cases likely on the cards.

The revised Vertical Block Exemption Regulation and guidelines (to be adopted by Q2 2022) will shed even more light on resale price maintenance and other topics that may have been blurred over time by digital developments such as dual pricing, dual distribution, online platforms and price parity clauses (see our August 2021 newsletter).

Conclusion

2021 seems to have been the prelude to a promise that will be redeemed in 2022. Exciting times are ahead with the application of a Competition Policy spiced up with globalised, green, social and digital ingredients, together with the publication of revised versions of the Horizontal and Vertical Block Exemption Regulations and guidelines – watch this space.

Contact:

• Floris ten Have, Partner Amsterdam | floris.tenhave@stibbe.com

Compliments of Stibbe – a member of the EACCNY.