Cartel Digest

Publications

Publications

Coty Case: Luxury Brands Can Restrict Online Sale via Marketplaces Such as Amazon

On December 6, 2017, the European Court of Justice (“the Court”) handed down its preliminary ruling in the Coty case confirming that a manufacturer operating a selective distribution system of luxury goods is allowed to prohibit online sales via third-party platforms such as Amazon under certain conditions.[1] The judgment was delivered in the context of a dispute between Coty Germany GmbH, a supplier of luxury cosmetics established in Germany, and Parfümerie Akzente GmbH, an authorized distributor of those goods, concerning the prohibition, under a selective distribution contract between Coty Germany and its authorized distributors, of the use by the latter, in a discernible manner, of third-party undertakings for internet sales of the contract goods. Coty brought an action before the German courts, which on appeal referred the question to the Court.

Icap v. Commission: General Court Upholds Cartel Liability of Facilitators, but Attempts to Rein in Commission’s Approach in Settlements

On 10 November 2017, the European Union General Court (GC) handed down its judgment in Icap v Commission. The judgment serves as a reminder of the Commission’s ability to impose liability for cartel infringements on “facilitators” as well as on the cartel’s main participants, but equally draws the Commission’s attention to its procedural obligations when it comes to settlement procedures, particularly in hybrid cases. The judgment also restates case law on the establishment of a “by object” infringement of Article 101(1) Treaty on the Functioning of the European Union (TFEU).

Shearman & Sterling Lawyers Author Chapters for International Comparative Legal Guide to: Cartels & Leniency 2018

Partners Matthew Readings (London-Antitrust), Geert Goeteyn (Brussels-Antitrust) and Elvira Aliende (Brussels-Antitrust); counsel Paolisa Nebbia (Rome/Brussels-Antitrust) and Mathias Stöcker (Frankfurt-Antitrust); and associate Shirin Lim (London-Antitrust) have authored various chapters of the International Comparative Legal Guide to: Cartels & Leniency 2018.

The FTC’s Challenge of Red Ventures–Bankrate: Antitrust Risks in Deals Backed by Private Equity Minority Shareholders

On November 3, 2017, the Federal Trade Commission filed a complaint challenging Red Ventures’ proposed acquisition of Bankrate. The FTC alleged that the deal likely would have lessened competition in the market for third-party paid referral services for senior living facilities—even though Red Ventures was not itself present in that market—since two of Red Ventures’ large private equity shareholders jointly own the closest competitor to Bankrate’s Caring.com. To remedy the FTC’s concerns, Red Ventures agreed to divest Caring.com. This is a cautionary reminder that (1) private-equity-backed merging parties must consider the portfolio companies of their shareholders when assessing the antitrust risks of a merger, and (2) the U.S. antitrust agencies can and will examine competition concerns stemming from minority shareholdings.

Paolisa Nebbia Authors Article on How Changes in Internet Consumption Habits Shape EU Policies

Counsel Paolisa Nebbia (Rome/Milan/Brussels-Antitrust) discusses in The In-House Lawyer how legislative initiative and enforcement action by the European Commission, aimed to widen online access to content “anywhere” within the EU, may only partially level the conditions for consumer access, opening different opportunities for, or imposing different obligations on, the market players depending on the technology and the service. Touching upon the recently adopted Portability Regulation and current proposal for a Copyright Regulation as well as the pay-TV case, Paolisa notes the interaction generates great complexity for licensing parties, which will only ease with the adoption of a final decision in the case. Licensing practices in the EU are likely to change dramatically in the next few years.