Further Google apps abuse of dominance complaint

Mobile app store Aptoide has reportedly filed an abuse of dominance complaint against Google with the European Commission.  It claims that Google has blocked Aptoide’s own application from working on Android devices.

Aptoide offers an alternative to the Google Play Store and claims that Google has used antivirus software to prevent use of the competing application purchasing store.

Aptoide has said that it filed the complaint with the European Commission earlier this week and that this is not its first complaint against Google.  Aptoide was a vocal complainant in the EU abuse of dominance mobile operating and search services investigations.  The Commission’s decision in its investigation into Google’s allegedly restrictive licensing conditions imposed on mobile phone operators is expected imminently.

Meanwhile, Google faces litigation in the UK and Australia from Unlockd which claims that Google abused its dominant position by threatening to remove applications using its advertising system from the Google Play Store.

Court of Appeal rules that Visa and MasterCard interchange fees restricted competition

The Court of Appeal has ruled in appeals in three cases concerning claims for damages against Visa and MasterCard alleging that their multilateral interchange fees (MIFs) infringe Article 101 TFEU.

The first two cases concern High Court judgments that dismissed claims against, respectively, Visa and MasterCard. The third is an appeal by MasterCard against the Competition Appeal Tribunal’s 2016 judgment awarding damages to Sainsbury’s.

In a 99 page judgment the Court of Appeal followed the ruling of the European Court of Justice in 2014 finding that Mastercard’s MIFs restricted competition within Article 101(1) and overturned Phillips J's November 2017 ruling that Visa's UK MIFs did not restrict competition within Article 101(1).

The Court of Appeal referred the cases back to the CAT to reconsider issues relating to application of Article 101(3) and quantum.

The Court of Appeal found that it was not necessary for it to undertake a complete review of the evidence to conclude that the CAT lacked an evidentiary basis for its finding that significant MIFs would have been agreed on a bilateral basis in the absence of the MIF.

The CAT will not hear new evidence (save on certain elements of quantum).  However, in an attempt to avoid arbitrary results the parties will be able to rely on generic evidence in the other cases that are equally applicable to both schemes.

Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and Others, Asda Stores Ltd and others v Mastercard Incorporated and others and Sainsbury's Supermarkets Limited v Visa Europe Services LLC, Visa Europe Limited and Visa UK Limited [2018] EWCA 1536 (Civ) (4 July 2018).

Application to bring collective proceedings against trucks manufacturers

The Competition Appeal Tribunal has published a notice of an application for collective proceedings in a competition damages action under section 47B of the Competition Act 1998 against Fiat Chrysler Automobiles N.V., CNH Industrial N.V., Iveco S.P.A., Iveco Magirus AG and Daimler AG.

The proposed action combines follow-on claims arising out of the European Commission’s decision - in Case AT.39824 – Trucks - announced on 19 July 2016 that it had imposed fines on four truck manufacturers (with a fifth receiving immunity) for their participation in a cartel for medium and heavy trucks in the EEA.

The applicant has applied for a collective proceedings order for it to act as the class representative in opt-out collective proceedings or, in the alternative, on an opt-in basis.

The proposed class comprises persons who, between 17 January 1997 and 18 January 2011, acquired one or more new medium or heavy trucks registered in the UK.

The commencement of collective proceedings under section 47B of the Competition Act, and the suitability of the proposed class representative, must be approved by the CAT.

The CAT will now consider whether to make a collective proceedings order.

The application follows the CAT’s 2017 rejection of an application by Walter Merricks as the putative class representative for a collective proceedings order in a £14 billion opt-out action against MasterCard.  The proposed proceedings would have aggregated follow-on actions for damages arising from the European Commission’s finding that MasterCard's EEA multilateral interchange fees infringed Article 101 TFEU.

Case 1282/7/7/18 - UK Trucks Claim Limited v Fiat Chrysler Automobiles N.V. and Others

European Commission probes Qatari LNG supply agreements

The European Commission has opened an antitrust investigation into supply arrangements between Qatar Petroleum and EEA importers of liquefied natural gas (LNG).

The Commission is investigating whether Qatar Petroleum’s long-term supply agreements, for the supply of LNG in the EEA contain direct or indirect restrictions on the ability of the buyers to sell the LNG in the EEA. Some of these arrangements are of 20 or 25 years’ duration.

The Commission suspects that such practices, if proven, violate Article 101 and 102 of the TFEU.

The Commission has pointed to its previous decisional practice citing precedents such as its investigations into GDF/ENI and GDF/ENEL where territorial restrictions were treated as restrictions ‘by-object’.  Those cases were decided over 15 years ago and although the Commission has identified a potential theory of harm in the current investigation it is less clear whether it will focus on Article 101 or 102 in this case.  Qatar Petroleum is the largest gas exporter in the world and apparently accounts for close to 40% of the EU’s gas imports and more in some member states.

Case AT.40416 - Qatar Petroleum. Commission press release IP/18/4239

Have I got news for you? Media ownership regulation and the future of Sky News

As part of a series of lectures and launch of a Competition Law Summer School, on Wednesday 20 June 2018 Suzanne Rab will be presenting and leading a discussion on media ownership regulation. The session promises to be highly topical against the backdrop of rival bids for Sky News and the aftermath of an extensive public interest review by the Competition and Markets Authority. The talk begins in Chambers at 18:00 followed by drinks at 19:15. This invitation is open to professionals with an interest in this sector and we would be very pleased if you could join us. Please email rsvp@serlecourt.co.uk to confirm your place.

https://www.linkedin.com/feed/update/urn:li:activity:6413364054101880833

Comcast offers USD65 billion for Fox

Comcast offers USD65 billion for Fox

Comcast’s offer is the latest in a series of rival bids to acquire the film, TV and international assets of Fox.

The offer adds a further twist to Fox’s own ongoing attempts to acquire the interests in Sky News that it does not already own.  That transaction is itself subject to Fox satisfying the UK government that there are suitable commitments in place to avert public interest concerns and safeguard the independence of Sky News.

Comcast’s own proposal is not straightforward in terms of regulatory issues, although the focus of attention has been more on traditional antitrust issues through the merger of content production and distribution.

The Comcast proposal is not unexpected and takes place against increasing vertical integration across the media production and supply chain.  It seems that the recent failure by the US administration to block AT&T from buying Time Warner might well fuel appetite for similar combinations.

Dixons Carphone and data protection litigation post-GDPR

The announcement that 5.9 million Dixons Carphone customers’ personal records have been accessed without authorisation has put a renewed focus on the prospects of group litigation based on data protection claims.

The incident happened before the new data protection rules under the GDPR came into force on 25 May 2018, which has brought with it tougher penalties of up to 4% of global turnover or 20 million euro, whichever is greater.

In the new regime we can certainly expect a growing dispute climate, not least because the GDPR has focused the minds of data subjects on their rights.

Article 79 of the GDPR gives a right to an effective judicial remedy for data subjects against any unlawful processing of their personal data by a data controller or data processor.  Article 82 gives any person suffering damage as a result of a breach of the GDPR with the right to compensation.

Perhaps one of the main more immediate practical impacts of the GDPR is that we will see data protection claims bolted onto other causes of action including breach of confidence and infringement of privacy, rather than as standalone claims.

The UK has no direct equivalent to opt-out class actions outside the specific framework of the Consumer Rights Act 2015 relating to competition law.  However, the Civil Procedure Rules do provide a basis for group claims to be made in a data protection context.