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Dublin 5th January – CCPC Publishes Annual Merger Report for 2020.
The Competition and Consumer Protection Commission has published its Annual Merger Report for 2020. The speedy publication of the report which provides statistics on the CCPC’s merger caseload for last year is welcome. The number of mergers notified to the CCPC was down 19% compared to 2019. The report also includes some information on the 33 mergers notified from 2003 to 2020 which were approved on the basis of commitments/undertakings. By definition, these cases raised potential competition concerns. The key question is whether the remedies in these cases have been successful in addressing such concerns. In recent years other competition agencies have conducted a review of merger remedies in order to assess their effectiveness. After 17 years it may be time for a more detailed review of the effectiveness of remedies in Irish merger cases. Click here to download the Report.
Brussels 6th January – EU Commission Launches Consultation on Collective Bargaining for Self-employed.
The EU Commission has launched a consultation entitled Collective Bargaining Agreements for the Self-Employed – Scope of Application of EU Competition Rules. Ireland’s Competition and Consumer Protection Commission (CCPC) and its predecessor, the Competition Authority, have opposed such arrangements in the past for groups such as freelance actors doing voice overs for commercials. The deadline for responding to the consultation is 3rd February.
Details of the consultation are available at https://lnkd.in/eENsxmF
Dublin 11th January – Consultation on Competition Law Review.
The Department of Enterprise, Trade and Employment has launched a consultation on proposed changes to Ireland’s competition legislation. The planned Competition (Amendment) Bill 2021 will transpose Directive (EU) 2019/1 into law (see the Competition (Amendment) Bill 2021 Public Consultation Document Appendix). In addition, the Bill includes amendments to existing legislation not covered by the Directive, but which seeks to increase the enforcement powers of the CCPC. The consultation is inviting views on these additional amendments only. The closing date for submissions is 29th January.
The Competition and Markets Authority has published new research on algorithms, showing how they can reduce competition in digital markets and harm consumers if they are misused. It is seeking submissions from academics and industry experts on the potential harms to competition and consumers caused by the deliberate or unintended misuse of algorithms. It is also looking for intelligence on specific issues with particular firms that the CMA could examine and consider for future action.
Paris 1st February – Lego’s French subsidiary settles alleged discrimination case.
Following an investigation by France’s Autorité de la concurrence, the building games company Lego France, a subsidiary of Lego Group, entered into commitments designed to facilitate access for all of its distributors to its “functional discount,” regardless of whether they sell its products in-store or online. Two companies had complained to the Autorité concerning practices adopted by Lego, which markets the famous building games. According to the complainants, Lego had adopted a pricing policy that discriminates against online sellers, particularly pure players. Lego France proposed several commitments to address these concerns. Following exchanges with the Autorité, Lego France substantially modified its initial commitment proposals. Thus, Lego France has committed, for a period of five years, to:
- Redefine the discount award criteria by making them more accessible to all distributors, including to any small stores wishing to develop their online presence or their delivery service; and
- Make its discount system and timetable more transparent for its clients.
Dublin 1st February – Loan Service Companies Abandon Proposed Merger.
The Competition and Consumer Protection Commission (CCPC) announced that two loan servicing companies – Link Group and Pepper – had abandoned plans to merge their Irish businesses. The proposed merger was originally notified to the CCPC on 10th February 2020. In July 2020, the CCPC announced that it would carry out a detailed – Phase 2 – investigation into the proposed transaction. It subsequently informed the parties that it had potential concerns about the likely impact of the transaction on competition. The parties have now dropped their plans almost a year after they had originally notified the transaction to the CCPC.
Dublin 5th February – CCPC Clears ESB/Coillte JV Subject to Commitments.
The Competition and Consumer Protection Commission (CCPC) has cleared a proposed joint venture between the ESB and Coillte, subject to a number of legally binding commitments. This follows an in-depth Phase 2 investigation by the CCPC. The CCPC stated that it had identified two potential competition concerns relating to the risk of exchange of competitively sensitive information. The CCPC has concluded that the commitments offered by the parties are sufficient to address its competition concerns.
London 1st March – UK Supreme Court Rules that Uber Drivers Are Employees Not Self-Employed.
The UK Supreme Court has ruled that Uber drivers must be treated as workers and not as self-employed individuals. Two former Uber drivers had bought a case to the UK Employment Appeals Tribunal which decided in January 2017 that they were employees of Uber and were therefore entitled to the minimum wage and to holiday pay. Uber had unsuccessfully appealed the decision through the UK courts and the Supreme Court judgement marks the end of the case. Uber’s share price fell in the US following the judgement. Uber stated that is has since made changes to its business model.
Click here to access the judgement.
The UK’s competition regulator is preparing an antitrust investigation into Facebook within the next few months, marking its latest crackdown on Big Tech’s dominance after launching similar investigations into Google and Apple earlier this year.
Dublin 15th April – KBC to Exit Irish Bank Market.
Belgian owned bank KBC announced that it is withdrawing from the Irish banking market.
Dublin 28th April – CCPC Seeks Court Order in Alleged RPM Case.
The Competition and Consumer Protection Commission (CCPC) announced that it was applying to the High Court to the High Court for an order pursuant to section 14B(2) of the Competition Act 2002, as amended, in relation to an agreement dated 15th April 2021 between the CCPC and Chairs Limited which trades in the State under the name “Coach House”. The application follows an investigation of whether there was conduct which could constitute resale price maintenance (RPM), contrary to section 4 of the 2002 Act, and/or Article 101 TFEU. This related to the manner in which Coach House’s then suggested selling prices were applied between March 2013 and August 2017 in the resale of Coach House’s household furniture products in the Republic of Ireland. Under the agreement Coach House has agreed to give a commitment not to engage in RPM conduct and, in particular:
- to refrain from imposing or agreeing any terms and conditions that place obligations on its resellers to adhere to Coach House’s s suggested, minimum or fixed resale prices for household furniture products; and
- to refrain from restricting the ability of resellers to independently determine the resale price of household furniture products.
The CCPC stated that it considers that these commitments address the competition concerns arising from its investigation. It announced that its application to the HIGH Court would be heard on 14th May.
London May – Survey Reveals Most UK Businesses Unfamiliar with Competition Law.
UK businesses were found to have a low level of familiarity with competition according to the latest survey on the subject conducted on behalf of the Competition and Markets Authority (CMA). Only 24% of businesses surveyed indicated that they had a good level of knowledge regarding UK competition law. This is largely unchanged since the previous such survey was carried out in 2018. Click here to download the survey results.
Washington D.C. 15th June – New FTC Chairperson Sworn In.
Professor Line Khan was sworn in as the new chairperson of the Federal Trade Commission. Professor Khan has been a strong critic of giant tech companies such as Amazon and becomes the youngest ever person to be appointed FTC chairperson.
Washington D.C. 28th June – Court Dismisses Government Actions Against Facebook.
A US District Court judge dismissed the Federal Trade Commission’s antitrust action alleging that Facebook had illegally monopolised the social media market in violation of section of the Sherman Act. The judgement criticised the FTC case for failing to show “how much power Facebook actually had, and still has, in a properly defined antitrust product market”. The Court, however, gave the FTC 30 days to file an amended complaint providing more details in support of its claim. The Court also dismissed a case brought by 46 US states challenging Facebook’s acquisitions of Instagram in 2012 and Whats App in 2014 for being out of time. The Court, however, rejected Facebook arguments that the FTC lacked the proper authority to challenge the aquisitions. The judgement has prompted calls for Congress to enact new legislation to deal with giant tech firms. Click here for more.
Dublin 8th July – CCPC Clears Nursing Home Acquisition Subject to Conditions.
The Competition and Consumer Protection Commission announced that it had cleared the proposed acquisition by Orpea S.A.* (Orpea) of six Firstcare nursing homes located in County Kildare. Orpea provides residential and nursing home care in over 22 countries, including Ireland. The commitment means Orpea must inform the CCPC if it considers buying any additional nursing homes in County Kildare. If such a transaction does not meet the mandatory notification thresholds, the CCPC can require Orpea to notify the transaction to it.
Brussels 8th July – EU Commission Fines Car Makers €875 for Collusion.
The EU Commission has fined car makers BMW and Volkswagen for colluding by agreeing not to compete in respect of reducing harmful nitrogen oxide emissions below the legally required levels, although they had the technological capability to do so. The Commission imposed fines totaling €875 million on Volkswagen and BMW. A third undertaking, Daimler, avoided any fines because it informed the Commission of the arrangements, availing of the EU’s leniency programme for companies that report cartels. The decision shows that collusion can involve agreeing not to compete in a range of different ways apart from prices. In this case the car makers agreed not to compete with each other on reducing car emissions. Click here for more.
Brussels 9th July – EU Commission Seeks Views on Revised Vertical Restraint Rules.
The European Commission has launched a public consultation on its draft revised Vertical Block Exemption Regulation (“VBER”) and Vertical Guidelines. Parties have until 17th September to make submissions.
Brussels 12th July – EU Commission Publishes Findings of Evaluation of Market Definition Notice.
The European Commission has published a Staff Working Document summarising the findings of the evaluation of the Commission’s Market Definition Notice which is used in applying EU competition law. The Market Definition Notice was adopted in 1997. Click here to find out more about the economics of market definition.
Permanent TSB announced that it plans to acquire €7.6 billion of loans from Ulster Bank along with 25 branches. Ulster Bank which is a wholly owned subsidiary of the NatWestGroup had previously announced its intention to exit the Republic of Ireland. PTSB has signed a memorandum of understanding with NatWest. The proposed deal will involve NatWest taking up to a 20 per cent stake in PTSB as part payment. It is estimated that the transaction would increase the size of PTSB’s loan book by about 50%.
London 2nd August – Musgrave joins legal action against credit card firms.
Musgrave is joining a legal action being taken by a number of UK retail groups seeking compensation from Visa and Mastercard for charging fees which were found to be in breach of both UK and EU competition law. in 2020 the UK Supreme Court, in a case brought by Sainsbury’s, Asda, Argos and Morrisons, ruled that the interchange fees imposed by Visa and Mastercard on retailers for every card transaction infringed both national and EU competition law.
Dublin 9th August – ESB Sues Truck Manufacturers Over Cartel Price Fixing.
According to media reports, the ESB instituted legal proceedings against four of the world’s largest truck manufacturers – Volvo, DAF, Iveco and Daimler. The four companies were fined more than €2.9 billion by the EU Commission after it found that they had operated a cartel fixing truck prices over a 14 year period from 1997 to 2011. The truck manufacturers are facing a raft of private actions seeking damages across a number of EU Member States.
Dublin 13th August – CCPC Clears Xtratherm Acquisition of Ballytherm.
The Competition and Consumer Protection Commission (CCPC) announced that it had cleared the proposed acquisition of Ballytherm by Xtratherm unconditionally. Following an initial Phase 1 investigation, the CCPC concluded that the transaction would not substantially lessen competition in any market in the State. Both undertakings are engaged in the production and supply of insulation materials. Compecon advised the parties in relation to the transaction.
In 2011 Paris Saint-Germain, one of France’s top soccer clubs, was bought by Qatar Sports Investments (QSI). Since then, PSG have dominated French football with a budget way in excess of its rivals. A paper by Compecon Director Patrick Massey and Vincent Hogan of UCD in the latest issue of the International Journal of Sport Finance asks whether the success achieved by PSG represents value for money. While PSG operated close to the production frontier in terms of converting resources to points, i.e., it was relatively efficient, although in several seasons it scored vastly more points (spent vastly more) than was necessary to win Ligue 1. However, at least up to 2016/17, PSG under performed in the Champions League given its budget compared to other teams in the competition. Click here to obtain a copy of the paper.
Dublin 30th September – CCPC Clears Waste Merger on foot of undertakings
The Competition and Consumer Protection Commission (CCPC) announced that it had cleared the proposed acquisition of Exomex by Pandagreen based on undertakings given by Panda to make certain divestments. The CCPC announcement stated that it had certain competition concerns in relation to the transaction but that these had been addressed by the undertakings offered by Pandagreen. Compecon advised Pandagreen in relation to the transaction. The CCPC is due to publish the reasons for its decision within 60 working days of its decision. They may provide interesting reading for business and merger practitioners.
Dublin 20th October – CCPC to conduct full Phase II investigation of Bank of Ireland/KBC Merger
The Competition and Consumer Protection Commission (CCPC) announced that it intends to conduct a Phase 2 investigation into the proposed acquisition of certain assets and liabilities of KBC Bank Ireland by Bank of Ireland. Following an extended Phase 1 investigation, the CCPC has decided that a full investigation is necessary to establish if the proposed transaction would lead to a substantial lessening of competition in the State. KBC announced in April that it was exiting the Irish market.
London 20th October – CMA Fines Facebook £50.5M for Enforcement Order Breach.
The Competition and Markets Authority (CMA) has fined Facebook £50.5m for breaching initial enforcement order (IEO) in relation to its investigation into Facebook’s acquisition of Giphy. IEOs require merging parties not to integrate their activities until the CMA has completed its investigation of a merger. The CMA has imposed the fine because it says that Facebook has failed to provide regular updates outlining its compliance with the IEO, as required by the order despite repeated warnings. It is the first time that the CMA has found that a company has breached an IEO.
Luxembourg 10th November – EU General Court Rejects Google Appeal.
The EU General Court has rejected Google’ appeal against a €2.42 billion fine imposed by the EU Commission for abusing its dominant position. The Court found that, by favouring its own comparison shopping service on its general results pages through more favourable display and positioning, while relegating the results from competing comparison services in those pages, Google departed from competition on the merits. The Court found that such behaviour was likely to weaken
Brussels 28th November – EU Commission to Investigate ComReg Proposals on NBI Access to Eircom Network.
The EU Commission announced that it is to launch an in-depth investigation into proposals by ComReg that would allow National Broadband Ireland (NBI) access to Eircom’s network at a lower price than other telecoms operators. NBI is responsible for the roll out of the National Broadband Plan (NBP). NBI wishes to access the Eircom network in order to provide broadband services in rural areas. The Commission has expressed concerns that offering NBI access to the network at lower prices than other telecoms operators who also use the network to provide such services would result in higher prices for consumers in areas not covered by the NPB.
World Competition December 2021 – Paper Rejects calls for an Easing of EU competition Policy.
The paper which was co-authored by Compecon’s Patrick Massey with Moore McDowell rejects arguments advanced in some quarters for a relaxation of EU competition policy in order to promote economic recovery. It points out that economic theory and historical experience indicate that competition is likely to assist rather than impede recovery. While the Covid-19 induced recession necessitated increased State Aid, there is a serious risk that such aid will seriously distort competition within the internal market, given differences in the financial capacity of Member States to support businesses. The paper argues that policies designed to promote national champions and greater self-sufficiency are not justified and that action to secure reciprocal market access for EU exports is preferable to protectionist measures. An important lesson from the financial crisis is that actions based on immediate needs are a poor substitute for policy intervention based on sound economic analysis.
Click here to access a copy of the paper.
Gijon 17th December – Competition Between Sports Leagues
In an online presentation to the XV Gijon Sports Economics Compecon Director, Patrick Massey, reviewed the history of rival football leagues in England. All of the major US sports have witnessed entry by rival leagues. Successful entry generally resulted in a merger between the entrant and the incumbent and the re-establishment of a single monopoly league. In England the Football League began in 1888 with just 12 clubs, six from the Midlands and six from the North West. Almost immediately a rival, the Combination League, was established with 20 clubs but it lasted for less than a season. In 1889 the Football Alliance was launched with 12 teams largely from the same parts of the country as the Football League. After three seasons the two leagues merged. The Football League expanded by adding additional teams mainly in the North and East while Woolwich Arsenal and Luton Town were the only Southern clubs. The Southern League was launched in 1894 and soon included most of the top teams in the South of England with the exception of Woolwich Arsenal. As late as 1914, only six of the Football League’s 40 clubs were located South of Birmingham. In 1919/20 the Football League and Southern League merged. The expansion of the Football League to 88 clubs in the 1920s effectively eliminated the potential for rival league entry as it left an insufficient number of locations without a league club for viable entry by a rival league.
Click here to view presentation.