CMA gives competition law guidance on sustainability

 

CMA gives competition law guidance on sustainability

The Competition and Markets Authority (CMA) has outlined a competition law framework to assist businesses and trade associations self-assess their sustainability agreements.

The document also provides links to CMA materials on competition law risks and compliance.

The CMA also has a blog where it discusses its engagement with global initiatives on competition law and environmental sustainability.

The guidance is welcome, although it is at a high level and does not get into the detail of analysing relevant efficiencies that may flow from such arrangements.  Contrastingly, recent guidance by the Netherlands Authority for Consumers and Markets (NCA) has confirmed that it will not impose penalties under its own regime while the European Commission is consulting on this issue.

CMA:  https://www.gov.uk/government/news/sustainability-agreements-cma-issues-information-for-businesses

NCA: https://www.acm.nl/sites/default/files/documents/second-draft-version-guidelines-on-sustainability-agreements-oppurtunities-within-competition-law.pdf

CMA consults on algorithm competition

 

CMA consults on algorithm competition

The CMA is seeking views and evidence on its paper on harms arising from algorithms.

On the specific issue of whether algorithms may facilitate anti-competitive outcomes, the CMA previously published an economic research paper on the role of pricing algorithms in online markets (2018).  This finds little evidence of companies using algorithms to show personalized prices, but they are sometimes used to change the order in which products are shown to shoppers.  However, it expressed a tentative view that in markets that are currently highly competitive it seems less likely that the use of data and algorithms would be so impactful that they could enable sustained collusion.

The latest consultation focuses less on algorithmic collusion and has a more consumer protection angle.  It is directed more at unilateral conduct and the fairness and transparency of design choices.

While the issues raised are not new, the consultation serves as a further reminder of the CMA’s focus on the digital sector and apparent harms that may be caused by the use of algorithms.

This consultation closes on 16 March 2021.

 

 

https://www.gov.uk/government/consultations/algorithms-competition-and-consumer-harm-call-for-information

Court of Justice rules on period of infringement in bid rigging

 

Court of Justice rules on period of infringement in bid rigging

In the case of an alleged single and continuous infringement under Article 101 TFEU involving bid-rigging, the period of infringement ends when a contract is signed with the party that put out the tender.

The Court of Justice considered that the restrictive effects on competition of bid-rigging end at the latest when the essential characteristics of the tender, and in particular the overall price to be paid, have been definitively determined when the contract is finally awarded to the successful bidder.

Ultimately, the referring court must verify the date on which the “essential characteristics” of the contract in question” were definitively determined.

As the period of the infringement is a relevant factor when determining penalties, the judgment is a useful clarification on this point.  The Court of Justice has emphasised that it is “really the conduct” of the parties that determines the end of the infringement.

Case C-450/19, ECLI:EU:C:2021:10

CMA opens abuse of dominance investigation into Google's "Privacy Sandbox" browser changes

 

CMA opens abuse of dominance investigation into Google's "Privacy Sandbox" browser changes

The CMA has launched an investigation into whether Google’s proposals to remove third party cookies (TPCs) on the Chrome browser and Chromium browser engine and replace TPCs' functionality with a range of "Privacy Sandbox" tools, while transferring key functionality to Chrome, amounts to an infringement of the Chapter II prohibition.

The CMA has raised concerns that the proposals could undermine the ability of publishers to generate revenue and undermine competition in digital advertising, entrenching Google’s market power.

The investigation follows complaints urging the CMA to take action against Google to ensure that it develops its proposals in ways that do not distort competition.

The CMA has already been considering the proposals in conjunction with the Information Commissioner's Office (ICO), through the Digital Regulation Cooperation Forum, and Google.  

 

https://www.gov.uk/government/news/cma-to-investigate-google-s-privacy-sandbox-browser-changes

How the end of the transition period affects UK merger control

 

The CMA has published a blog titled: "How the end of the Transition Period affects UK merger control". The changes take effect from 1 January 2021.

The practical result is that some of the biggest cross-border transactions which were previously subject to exclusive review by the European Commission, can now also be subject to UK merger control review.

The European Commission will be responsible for merger cases that were notified to the Commission before the end of the transition period.

The CMA will not now open its own investigation into ongoing Phase II EU cases including London Stock Exchange Group/Refinitiv or AON/Willis Towers Watson.

The CMA can review transactions that were not notified to the Commission before the end of the transition period, provided that the UK threshold tests are met.

A number of transactions that were announced in 2020 but which have not yet been notified to the European Commission, will now fall to the CMA for review.

The CMA recommends that businesses affected by these developments should take legal advice on their position.

https://competitionandmarkets.blog.gov.uk/2021/01/06/how-the-end-of-the-transition-period-affects-uk-merger-control/

Technical guidance on complying with the UK's international obligations on subsidy control

 

Technical guidance on complying with the UK's international obligations on subsidy control

On 31 December 2020, the Department for Business, Energy and Industrial Strategy (BEIS) published technical guidance for public authorities on the subsidies chapter of the UK-EU Trade and Co-operation Agreement; World Trade Organisation (WTO) rules on subsidies; and subsidy control commitments contained in other international commitments (Guidance).

The Guidance sets out the key steps that public authorities should take when awarding subsidies after 1 January 2021.

The Guidance also provides advice on the application of Article 10 of the Protocol on Ireland/Northern Ireland (the NI Protocol), as required by section 48 of the Internal Market Act 2020.

The Guidance is not exhaustive and is not intended to cover specific situations.

The government states that it is considering secondary legislation in early 2021 to give legal certainty regarding compliance with the UK's commitments in relation to subsidies. It will also consider, as part of a forthcoming consultation on the UK's approach in this area, the necessity of further primary legislation.

https://www.gov.uk/government/publications/complying-with-the-uks-international-obligations-on-subsidy-control-guidance-for-public-authorities/technical-guidance-on-the-uks-international-subsidy-control-commitments-from-1-january-2021#fn:45