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Unfair Commercial Practices: The European Court of Justice Specifies Criteria for Comparative Advertising

On 8 February 2017, the European Court of Justice (ECJ) handed down a judgment on a reference for a preliminary ruling stating that comparative advertising can be misleading if consumers are not provided with information on the different format or size of shops where the products are sold. In particular, according to the ECJ, consumers shall be informed of all the relevant elements regarding the comparison, including whether it is “made between prices charged in shops having larger sizes or formats in the advertiser’s retail chain and those displayed in shops having smaller sizes or formats in competitors’ retail chains”. On 2 October 2013, ITM Alimentaire International SASU (ITM) sued Carrefour for damages alleging that the television advertising campaign launched by the company, consisting in a comparison between products charged in its shops and in competitors’ shops, was misleading. On 31 December 2014, the Commercial Court of Paris awarded damages to ITM...

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Higher Mitigation of Fines Due to Prompt Implementation of Measures Addressing Authority’s Concerns in Unfair Commercial Practices Investigations

In a decision published on 10 February 2017, imposing Samsung Electronics Italia S.p.A. (“Samsung”) fines totaling € 3.1 million for alleged aggressive unfair commercial practices, the Italian Competition Authority (the “Authority”) confirmed that the prompt implementation of measures aimed at addressing its concerns regarding alleged unfair commercial practices leads to a higher mitigation of the fine. According to the Authority, Samsung would have: (i) provided consumers with incomplete and misleading information on the terms and conditions of the promotions; and (ii) forced consumers to provide their consent to the processing of their personal data for marketing purposes, as a condition to obtain the premiums related to the purchase of the product. In setting the amount of the fine, the Authority took into account the measures implemented by Samsung before and after the beginning of the proceeding. Indeed, in relation to the second allegation, the...

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McDermott EU Competition Annual Review 2016

It is difficult for General Counsel and their teams to monitor all new developments adequately. With the growth of the Internet and the daily updates to EU competition rules, everyone receives and has access to masses of information, but it is difficult to select that which is really relevant to one’s business. McDermott’s EU Competition team across Brussels, France, Germany and Italy has authored the EU Competition Annual Review 2016 to help General Counsel and their teams to focus on the essential updates that they should be aware of. This Special Report summarizes recent developments in EU competition rules during the year 2016 where several new regulations, notices and guidelines were issued by the European Commission and many interesting cases were decided by the General Court and the EU Court of Justice. All these new rules and judicial decisions can be relevant for international companies operating in the EU. Indeed, in addition to the daily update,...

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An Increased Cooperation in Enforcement Activity: The Italian Competition Authority and the Italian Medicines Agency Sign a Memorandum of Understanding

On 19 January 2017, the Italian Competition Authority (AGCM) and the Italian Medicines Agency (AIFA) signed a memorandum of understanding in order to increase enforcement in the pharmaceutical sector by strengthening their investigation powers and facilitating the exchange of data. Under the agreement, AGCM and AIFA will inform each other on cases concerning alleged violations of rules enforced by one of them. In particular, in case of negotiations carried out by AIFA with pharmaceutical companies on the applicable drugs prices, or whether counterfeiting cases regarding pharmaceutical products emerge during an investigation. Furthermore, the authorities will cooperate in their advocacy activities and in carrying out sector enquiries. Finally, the authorities will exchange information and data on matters of common interest. The memorandum of understanding confirms the increasing interest of AGCM in the pharmaceutical sector. During this year, AGCM has carried...

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Finally Implemented! The Italian Council of Ministers Approves a Legislative Decree Implementing the EU Antitrust Damages Directive

On 14 January 2017, the Italian Council of Ministers approved the Legislative Decree implementing Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the “Directive”). The final version of the Legislative Decree has not been published yet on the Official Journal. However, the key points emerging from it include: A strengthened mechanism of evidence disclosure in actions for damages related to alleged infringements of competition rules. In fact, the judge will have the power to request the defendant or a third party, including the Italian Competition Authority (the “Authority”), to disclose relevant evidence which lies in their control. The extent to which Italian courts will be able to rely on decisions of the Italian Competition Authority or other national competition authorities. For instance, an infringement of competition...

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Unfair Commercial Practices – The Italian Competition Authority and The Italian Communication Authority Sign a Memorandum of Understanding

On 13 January 2017, the Italian Competition Authority (AGCM) and the Italian Communication Authority (AGCOM) signed a memorandum of understanding concerning several aspects of their cooperation in the application of consumers’ protection rules. Under the memorandum of understanding, in the case of consumers’ protection matters, which potentially involve both authorities, there will be coordinated actions, even during the preliminary investigation phase. Furthermore, AGCM will inform AGCOM on cases concerning the violations of rules enforced by AGCOM, which will do the same in case of hypothesis of unfair commercial practices in the electronic communications sector. The authorities agreed also to set up a standing working group in order to promote the debate on consumer protection issues. Finally, the agreement provides rules on the exchange of information between the authorities on investigations. According to Article 27(1-bis) of the Italian Consumers Code,...

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Sale of Serie A Broadcasting Rights, the Regional Administrative Court of Lazio Annuls the Decision of the Italian Competition Authority

On 23 December 2016, the Regional Administrative Court of Lazio (the TAR) annulled the decision of the Italian Competition Authority (the Authority), against Sky Italia S.r.l. (Sky); Reti Televisive Italiane S.p.A. (and its subsidiary Mediaset Premium S.p.A.) (RTI); the Italian Football League (Lega Calcio); and Infront Italy S.r.l.(Infront), concerning an alleged violation of Article 101 Treaty on the Functioning of the European Union  (TFEU) on the sale of broadcasting rights of the Italian Premier League “Serie A” for the years 2015–2018. According to the TAR, the Authority failed to observe the mandatory time-limit to contest the alleged conduct. The TAR highlighted that the Authority erred in considering the alleged conduct as a market sharing agreement. Furthermore, the Authority also erred in considering the agreement as a restriction “by object.” In particular,, according to TAR, the Authority has not carried out a thorough analysis of the relevant...

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The Italian Competition Authority Investigates Alleged Margin Squeeze in the Italian Bulk SMS Market

On 16 November 2016, the Italian Competition Authority (the “Authority”) opened a proceeding against Vodafone Italia and Telecom Italia for alleged abusive conducts in the bulk SMS market. According to the Authority, both companies would have abused their dominant position in the upstream market of SMS termination services through alleged abusive conducts aimed at excluding or limiting other competitors’ ability to compete in the downstream bulk SMS market. According to the Authority, Vodafone Italia and Telecom Italia would have implemented a margin squeeze strategy in breach of Article 102 TFUE. In particular, the tariffs applied by Vodafone Italia and Telecom Italia in the upstream and downstream markets would leave an insufficient margin for any efficient competitor to cover their own specific costs for providing the bulk SMS service to customers, therefore preventing or restricting their access to the downstream market. The opening of the investigation...

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Model Management Services, Italian Competition Authority Fines 8 Modelling Agencies and Their Trade Association for Price Fixing

On 11 November 2016, the Italian Competition Authority (the Authority) fined eight modelling agencies (B.M. S.r.l. – Brave, D’management Group S.r.l., Elite Model Management S.r.l., Enjoy S.r.l., Major Model Management S.r.l., Next Italy S.r.l., Why Not S.r.l. and Women Models S.p.a.) and their trade association (Assem) of € 4.5 million for alleged price collusion. According to the Authority, the modelling agencies would have agreed on the applicable prices on the market with the aim of avoiding any form of competition. In particular, the alleged price collusion would have concerned all the components of the prices applied to the major maisons and other clients (e.g., fees for models, wages for the modelling agencies and other additional costs). Furthermore, a practical role would have been played by the trade association, Assem, where the modelling agencies had held frequent meetings to develop the alleged concerted practice. In calculating the fine, the...

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