Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (Jan 19, 2024)

By WK Editorial Staff

A periodic roundup of other items of interest to the Antitrust and Trade Regulation community.

ANTITRUST NEWS: The European Commission (EC) announced that it has made commitments by Renfe, the Spanish state-owned rail incumbent operator, legally binding under EU antitrust rules. The commitments address the EC's preliminary competition concerns relating to Renfe's refusal to supply all its content and real-time data related to its passenger rail transport services to rival ticketing platforms. In April 2023, the EC opened a formal investigation over concerns that Renfe may have abused its dominant position in the Spanish passenger rail transport market. The EC concluded that the final commitments offered by Renfe, which include making available to third-party ticketing platforms, irrespective of the channels they use to access Renfe content and real time data, all the current and future content and real-time data displayed on any of its own online channels, would address its preliminary competition concerns over Renfe's alleged abuse of its dominant position. It therefore decided to make them legally binding on Renfe.

ANTITRUST NEWS: The FTC has approved revised jurisdictional thresholds for Section 8 of the Clayton Act, which prohibits interlocking directorates. For 2024, thresholds under Section 8 of the Act that trigger prohibitions on certain interlocking memberships on corporate boards of directors are $48,559,000 for Section 8(a)(l) and $4,855,900 for Section 8(a)(2)(A). The thresholds for Section 8 of the Clayton Act become effective upon their publication in the Federal Register.

ANTITRUST NEWS: In a video message, Manish Kumar, Deputy Assistant Attorney General for Criminal Enforcement at the Department of Justice Antitrust Division, and Maria Jaspers, the director responsible for cartel enforcement at the European Commission, encouraged potential informants to notify their respective agencies of cartel conduct, particularly global cartel conduct.

ANTITRUST NEWS: Road construction company Construction DJL Inc. has been ordered to pay $1.5 million in connection with bid rigging for ministère des Transports du Québec paving contracts, the Canada Competition Bureau announced. The payment is part of a settlement between the Public Prosecution Service of Canada and Construction DJL filed with the Superior Court of Québec. The settlement ends the Competition Bureau's investigation of the company's role in a bid-rigging scheme between 2008 and 2009. The settlement takes into account the fact that Construction DJL previously reimbursed overpayments related to the bid-rigging scheme through the Government of Québec’s Voluntary Reimbursement Program and that the individuals involved in the scheme no longer work for the company. As part of the settlement, the court has also ordered the company to follow its corporate compliance program and to maintain appropriate control procedures to ensure its effectiveness.

ANTITRUST NEWS: The UK Court of Appeal has confirmed that the Competition and Markets Authority (CMA) has the power to require overseas companies to produce documents and information when it is investigating suspected anti-competitive conduct. In December 2022, the CMA imposed a fixed penalty of £30,000 and a daily penalty of £15,000 on BMW AG for failing to comply with an information request. Both BMW AG and VW AG – which was also subject to a formal information request – issued legal challenges. When a combined judgment from the Competition Appeal Tribunal (CAT) and the High Court found in favor of the firms, the CMA appealed. The Court of Appeal stated that the CMA’s ability to conduct competition investigations would be compromised were it unable to obtain information from overseas, saying it would create “a perverse incentive for conspirators to move offshore to organize cartels directed at harming the United Kingdom market.” The Court of Appeal also found that nothing in “logic, policy, case law or legislative history” supported the restrictive interpretation adopted by the CAT and High Court.

ANTITRUST NEWS: Washington state lawmakers are considering a bill (Senate Bill 6170) to amend Section 43.10.220, pertaining to the antitrust revolving fund, to reflect a new section added to chapter 43.79 of the Code pertaining to powers of the attorney general. The new section provides that in a regulatory or civil enforcement action brought by the attorney general, where there is a payment to the state, the attorney general shall seek a court order or settlement that includes a requirement that the money received by the state may not be expended except pursuant to an appropriation by law.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved, under the EU Merger Regulation, the creation of a joint venture by Ford Motor Company, Bayerische Motoren Werke Aktiengesellschaft (‘BMW') and Honda Motor Co., Ltd. The transaction relates primarily to the provision of grid services to electric utility companies and system operators in the US and Canada. The Commission concluded that the notified transaction would not raise competition concerns, given the limited impact on the European Economic Area. The notified transaction was examined under the simplified merger review procedure.

CONSUMER PROTECTION NEWS: The FTC will participate in an international forum “that will enable the agency to cooperate, provide assistance with investigations and share information with other privacy authorities around the world,” the FTC announced. “The FTC’s participation in the Global Cooperation Arrangement for Privacy Enforcement (Global CAPE) ensures the agency can keep pace with the increasingly global nature of commerce,” the Commission said. “The FTC’s participation in the nonbinding Global CAPE will help the agency to cooperate with other members of the organization on privacy and data security related law enforcement issues without having to negotiate a separate memorandum of understanding with each participant,” it added. Global CAPE was created to supplement the Global Cross Border Privacy Rules (CBPR) Forum developed in 2011 by the Asia-Pacific Economic Cooperation (APEC) group, the FTC noted. The FTC, along with other government agencies from the U.S. and its allies, were already participants in the APEC forum. Global CAPE was created to enable non-APEC nations to participate, and the FTC voted 3-0 to join the new arrangement.

CONSUMER PROTECTION NEWS: The FTC announced it is seeking public comments on proposed improvements to the Energy Labeling Rule to modernize and expand its coverage to help reduce energy costs for consumers. The FTC’s Energy Labeling Rule requires manufacturers to attach labels to major home appliances and other consumer products to help consumers compare the energy usage and costs of competing models. The NPRM addresses four basic issue categories related to the energy labeling program: (1) new product labels for air cleaners, clothes dryers, miscellaneous refrigeration products, and portable electric spas; (2) changes to labels for several existing products; (3) revisions to the current requirements for affixing labels on showroom models; and (4) several other minor amendments.

PRIVACY NEWS: Google announced that it has begun testing and rolling out a number of changes to its products to get ready for the new rules that come into force in March as a result of the European Union’s new Digital Markets Act (DMA). People and businesses in Europe will begin to see those changes in the coming weeks, including additional consents for linked services, changes to search results, choice screens, and data portability changes.

Companies: Renfe; Google; Ford Motor Company; Bayerische Motoren Werke Aktiengesellschaft; Honda Motor Co., Ltd.; Construction DJL Inc.

News: Antitrust AcquisitionsMergers ConsumerProtection Privacy AntitrustDivisionNews FederalTradeCommissionNews WashingtonNews