European Commission opens abuse of dominance investigation into power exchanges

 

European Commission opens abuse of dominance investigation into power exchanges

 

The European Commission is investigating whether the power exchange EPEX Spot SE (EPEX Spot) has abused its dominant position in the market for electricity intra-day trading in at least six member states (Austria, Belgium, France, Germany, Luxembourg and the Netherlands).

EPEX Spot is the biggest power exchange in many member states where exchanges play an essential role for the safety of the network, as well as facilitating efficient use of green technologies.

The Commission believes that EPEX Spot may have restricted competition in the intra-day markets contrary to Article 102 TFEU.  It suspects that EPEX Spot may be distorting the prices of trading services, which could lead to higher electricity prices for consumers by hindering the cost-effective integration of renewable technologies.

In December 2018, the UK energy regulator Ofgem launched an investigation into concerns that EPEX abused its dominance in the markets for cross-border intra-day electricity trading platforms between the UK and Ireland.  It closed the investigation in June 2019 after accepting commitments from EPEX.

https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1523

Lundbeck ‘pay for delay’ fines upheld on appeal

 Lundbeck ‘pay for delay’ fines upheld on appeal

The European Court of Justice has dismissed six appeals by Lundbeck and several generics manufacturers against General Court judgments dismissing challenges to the European Commission's 2013 decision finding that they had infringed  Article 101(1) TFEU.

Lundbeck entered into agreements with each of the generics manufacturers whereby they each agreed not to enter the market for the drug citalopram in return for payments by Lundbeck.

The Court of Justice ruled that the General Court was correct in finding that Lundbeck and each of the generics manufacturers were potential competitors.

It upheld the Genera Court’s assessment that the agreements constituted restrictions of competition "by object".  

The judgment puts to an end a long running case dating from 2013. It will no doubt embolden competition authorities and claimants to pursue cases based on similar theories of antitrust harm.

Sun Pharmaceutical Industries and Ranbaxy (UK) v Commission (C-586/16), Generics (UK) v Commission (C-588/16), Lundbeck v Commission (C-591/16), Arrow Group and Arrow Generics v Commission (C-591/16), Xellia Pharmaceuticals and Alpharma v Commission (C-611/16 P) and Merck v Commission (C-614/16) ECLI:EU:C:2021:241 to 246

MoJ Consultation on Judicial Review

 

The Ministry of Justice (MoJ) has published the report of the Independent Review of Administrative Law (IRAL) on reform of the judicial review process.

The IRAL’s recommendations include:

1.     Discontinuing the arrangement established by the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28, which permits an application for judicial review of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision.

2.     Introduction of a "suspended quashing order" (SQO) as a new remedy.  An SQO would be conditional and allow a defendant the opportunity to remedy any defects identified by the court within a specified period of time. 

The MoJ described these as "immediate reforms".

The consultation seeks views on further options suggested by the IRAL including the use of ouster clauses. 

The IRAL did not recommend the codification of the grounds for judicial review, amending the law on standing or legislating to make further substantive areas non-justiciable.

The consultation closes on 29 April 2021.

https://www.gov.uk/government/news/judicial-review-consultation-launched

Competition in a digital age: The balance between ex ante and ex post intervention

 

Competition in a digital age: The balance between ex ante and ex post intervention

Margrethe Vestager, European Commission Commissioner for Competition, has given a speech at the European Internet Forum on competition in a digital age.

Reflecting what have now become perennial themes, Vestager addressed the rise in the power of digital platforms, the impact on privacy, data, access to the market and on democracy.

Against this backdrop, the Commission has proposed the Digital Services Act (DSA) and the Digital Markets Act (DMA).

The DMA contains a list of dos and don’ts that digital gatekeepers will have to abide by.   As such, the DMA is designed to complement competition law by providing for ex ante regulation.  It will not affect how the Commission enforces competition law under Article 101/ 102 TFEU.  Rather, the aim is to provide a framework for ensuring that problematic practices do not arise in the first place.

https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/competition-digital-age_en

Commission consultation on collective bargaining and competition law

 

Commission consultation on collective bargaining and competition law

The European Commission has launched a consultation on the application of EU competition law to collective bargaining by ‘solo’ self-employed persons.

As a self-employed barrister this issue has more than a passing personal interest.  Other self-employed persons such as doctors, consultants and free-lancers will no doubt be interested.

Collective bargaining between employees and employers is outside the scope of EU competition law.

Yet self-employed persons are considered to be "undertakings" under EU competition law and an agreement between them risks being in breach of Article 101 TFEU.  The same analysis tends to follow under UK competition law and other competition laws internationally.

The Commission seeks views to clarify the applicability of EU competition law to collective bargaining by solo self-employed. In a digital economy it is conscious not to constrain innovative pricing while at the same time safeguarding consumers’ interests.

The Commission seeks comments by 28 May 2021.

https://ec.europa.eu/commission/presscorner/detail/en/ip_21_988

 

 

Government narrows definitions of sectors covered by new national security regime

 

Government narrows definitions of sectors covered by new national security regime

The Department for Business, Energy and Industrial Strategy (BEIS) has published the government's response to its consultation on mandatory notification in specific sectors under the National Security and Investment Bill.

The Bill will establish a new statutory regime for government intervention in investments for the purposes of protecting national security.

17 specified sectors were identified as within the scope of the Bill for these purposes including the energy, communications, artificial intelligence, defence, cryptographic authentication, computing hardware, and military and dual use sectors.  This breadth of coverage was widely criticised.

The government has refined the list of sectors following consultation and states that it continues to further refine the definitions in some sectors, including the energy and communications sectors.

The final definitions will be set out in regulations following Royal Assent.