On 15 December The European Commission published the long awaited Digital Markets Act proposal. The Proposed Regulation imposes a series of ex ante behavioural obligations on entities that the Commission designates as ‘gatekeepers’. The obligations for those designated platforms and the potential sanctions largely resemble behavioural remedies and fines that the European Commission might otherwise seek to impose under its competition law powers. The Commission’s enforcement action is expected to be intense, with ten on-site investigations per year and an additional 80 full time staff.
A non-compete obligation which is imposed on the seller in the context of a M&A transaction can be permissible when it is ancillary to the transfer of the relevant business, that is, when it is directly related and necessary to the implementation of the deal. In order to enjoy the fruits of the purchase of the transferred business, the buyer must be able to benefit from some protection against competition from the seller. However, non-compete clauses only comply with antitrust/competition laws when their geographical scope, duration, subject matter and the
According to the news service mlex, on 27 February 2014 the European Commission adopted a formal Statement of Objections against the Spanish operator Telefónica’s plan to buy E-plus of Germany, laying out concerns that deal could harm competition and lead to price increases. The contents of the Statement of Objections are not yet publicly available, and EC spokesman Antoine Colombani stressed that it marked only ”a preliminary step in an in-depth merger investigation”. The parties will have an opportunity to respond to the Commission’s objections and to request a hearing.