European and Swedish Antitrust News (December 16, 2021)
The UK CMA has ordered Facebook to sell Giphy as the acquisition completed in May 2020 would have substantial horizontal effects in display advertising and vertical effects in supply of social media services. In other news, the EU Commission has fined Conserve Italia for a cartel and opened a phase-II-investigation of the Recticel-Greiner merger, Advocate General Rantos has set criteria for if an exclusionary practice is abuse, and the SCA has been advised to seek preliminary rulings from ECJ.
UK CMA orders Facebook to sell Giphy. The Competition and Markets Authority has concluded that Facebook’s acquisition of Giphy, completed in May 2020, would substantially lessen competition in display advertising in the UK due to horizontal unilateral effects and in the supply of social media services worldwide (including in the UK) due to vertical effects resulting from input foreclosure. The decision, which certainly will be appealed by Facebook, is expected to have global consequences for ‘big tech’ companies. https://www.gov.uk/cma-cases/facebook-inc-giphy-inc-merger-inquiry
EU commission opens phase-II-investigation of Recticel-Greiner merger. The Commission has identified a number of preliminary concerns over Greiner’s proposed acquisition of Recticel, both of which are leading producers and suppliers of technical foams in Europe, which would result in high combined market shares in many markets. In particular automotive original equipment manufacturers (OEMs) tend to rely on competition between these two companies. https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6262
EU Commission fines Conserve Italia €20 million for canned vegetables cartel. In 2019, the Commission settled a case against three companies for a cartel during 2000-2013. Conserve Italia decided not to settle its case regarding the same cartel and has now been fined after further investigation. The cartel was considered a single infringement comprising three separate agreements over canned vegetables, of which Conserve Italia participated in two agreements. https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6164
Advocate General Rantos sets criteria for if an exclusionary practice is abuse. An Advocate General’s Opinion in Court of Justice Case C-377/20 clarifies that an incumbent operator may adopt practices aimed at retaining its customers, but must not exploit advantages stemming from the statutory monopoly to exclude competitors considered to be as efficient. https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-12/cp210220en.pdf
SCA advised to seek preliminary rulings from Court of Justice. A research report for the Swedish Competition Authority finds that almost all decisions in the Patents and Markets Court of Appeal have gone against the SCA because its failed to demonstrate that the prerequisites for application of the rules of the Swedish Competition Act have been met. In cases where EU law is applicable, the SCA is therefore recommended to seek a preliminary ruling from the ECJ. https://www.konkurrensverket.se/globalassets/dokument/informationsmaterial/rapporter-och-broschyrer/uppdragsforskning/forsk-rapport_2021-4.pdf
