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Stibbe | ACM’s 2021 enforcement focus: digital, green and COVID-19

The ACM’s list of 2021 focus areas is out. Whereas the digital economy and the energy transition are repeats from last year, the effects of the COVID-19 crisis is a new, although somewhat unsurprising, designated focal point.

In 2021, the ACM will launch a preliminary study into the effects of the COVID-19 pandemic on retail markets and set up best practices for closer collaborations in the healthcare sector. It will finalise its investigation into Apple’s app stores rules, and continue its investigation into payment apps’ access to NFC communication. The ACM will also closely monitor the use of algorithms and complete the study into apps for public transportation. The ACM is also bound to spend time on discussing its revised draft sustainability guidelines at European level, and finalising its investigations into retail prices, buyer agreements and prescription drugs.

The effects of the COVID-19 pandemic

The ACM is aware of COVID-19’s impact on the economy as well as on vulnerable consumers. It intends to conduct a preliminary study into the long-term effects of the crisis on retail markets, particularly for brick-and-mortar stores, to see if and how it can contribute to the functioning of physical markets. In addition, the ACM will continue educating vulnerable consumers about their rights and urging businesses to fulfil their obligations towards them. The ACM will also publish a number of good practice guidelines to ensure healthcare collaborations stay on the right side of the competition rules.

Furthermore, even if not expressly mentioned in its focus areas list, the ACM is bound to keep tabs on collaborations instigated by COVID-19 that are either anti-competitive to begin with or have lost their (temporary) ‘endorsement’ (see our May 2020 newsletter).

Digital economy

The ACM’s 2021 focus in the digital economy will be on completing its investigation into Apple’s App Store (see our May 2019 newsletter), while continuing its investigation into access of payment apps to NFC chips (see our January 2021 newsletter). A study into potential obstacles regarding the development of MaaS-services (Mobility as a Service) will also be published this year (see our June 2020 newsletter). In addition, the ACM will continue to invest in its oversight of algorithms and is likely to clamp down on online misleading practices soon (see our January 2021 newsletter).

Energy transition

The hottest topic within the focus area of energy transition is the ACM’s second draft version of the guidelines on sustainability arrangements. Following the public consultation on its earlier draft guidelines (see our September 2020 newsletter), the ACM has tweaked them to include more examples and clarifications, as well as a technical report commissioned together with the Greek authority, on methods to measure sustainability benefits.

The draft guidelines will now be used to kickstart a European debate on this issue. The ACM has indicated that, during this debate, it will not impose fines for sustainability collaborations that clearly followed the draft guidelines in good faith.

What else?

In 2021, the ACM will tie up some loose ends by completing (i) two investigations into retail prices (one relating to consumer electronics and the other in the home-decor sector), (ii) two investigations into buyer agreements (one involving reusable waste products and the other in the agricultural sector) and (iii) an investigation into excessive pricing regarding prescription drugs.

Conclusion

Looks like the ACM will have a busy year. Apart from the digital antitrust dynamics, companies can anticipate more guidance on issues such as collaborations in the health care sector or for sustainability purposes. In addition, the outcome of the ongoing investigations will shed more light on how the ACM deals with potential vertical restraints, buyer cartels and prescription drugs pricing.

Contact:

  • Floris ten Have, Partner, STIBBE | floris.tenhave[at]stibbe.com

Compliments of Stibbe – a member of the EACCNY.