Key Developments in Europe

As the world grappled with the impact of a global pandemic, which further accelerated the growth of, and our reliance on, digital services and products, competition agencies in Europe continued to probe the conduct and transactions of companies who offer these services and products. The growing importance of digital markets for both our professional and personal lives also increased societal pressure on European governments and parliaments to take action to protect and foster competition in these markets. This Chapter provides an overview of recent legislative developments in major European jurisdictions and identifies certain trends in the decisional practice of European competition agencies relating to digital markets.[2]

The Chapter in particular concludes that:

  • some jurisdictions in Europe are proposing digital markets regimes designed to regulate the conduct of tech companies, while others are amending their competition laws to enhance competition enforcement powers in relation to digital markets; and
  • European competition agencies continue to use both antitrust rules and merger control to safeguard competition in and for digital markets. Antitrust investigations have, for example, continued to focus on enforcement vis-à-vis practices related to online sales, including the use of pricing algorithms, most-favoured-nation (or parity) clauses and dual pricing. On the merger control front, we see that transactions in the digital sector have started to receive greater scrutiny from European competition agencies and this trend is likely to continue for the foreseeable future. Some agencies have introduced novel theories of harm or adopted a broad interpretation of their jurisdiction to review such deals.

Legislative developments: ex ante regulation for digital markets

Some of the major jurisdictions in Europe have adopted or proposed ex ante regulation for digital markets over the past year or so. At the end of 2020, the European Commission (EC), for example, proposed a set of rules for digital services, including social media, online marketplaces, and other online platforms that operate in the EU:

  • the Digital Services Act (DSA), which contains new obligations for digital services providers to contribute to online safety through faster removal of illegal content and the protection of users’ fundamental rights online; and
  • the Digital Markets Act (DMA), which sets specific obligations on large online platforms identified as ‘gatekeepers’ (such as search engines, social networks and online intermediation services) to avoid unfair business practices and lack of contestability in digital markets. These new obligations would relate to both practices traditionally regulated by competition rules (e.g., exclusivity and tying) and others falling outside of that realm (e.g., data collection and transparency). The EC will be able to impose fines or remedies in case of non-compliance with the new obligations. The EC will also have the power to carry out market investigations (the new competition tool). Finally, the proposals impact mergers involving gatekeepers who will be required to inform the EC of all intended acquisitions (within the meaning of the EU Merger Regulation) in the digital sector prior to their implementation.[3]

In post-Brexit Britain, the UK government published its own proposals for a digital markets regime in July 2021. The proposals build on recommendations by the Digital Competition Expert Panel, chaired by Professor Furman. Under these proposals, which appear more targeted but also potentially more interventionist than the EC proposals, a newly established Digital Markets Unit (DMU) will be able to designate tech firms with substantial market power as having ‘strategic market status’ (SMS). Such firms will have to comply with a mandatory code of conduct (which will be tailored to each individual firm), backed up by strong enforcement powers (including the ability to impose fines of up to 10 per cent of turnover). The DMU may also be able to suspend, block and reverse behaviour in breach of the code, or order specific actions to force the SMS firms to comply (including on an interim basis). Alongside the code of conduct, the UK government proposes to introduce a power for the DMU to implement ‘pro-competitive interventions’ (PCIs) with more wide-ranging remedies aimed at ‘opening up markets to greater competition’ and ‘designed to address the root causes of substantial and entrenched market power in digital markets’.

In addition, the UK government is considering whether to introduce a specific merger regime for SMS firms, which would provide the Competition and Markets Authority (CMA) with greater scope to scrutinise mergers by such firms and intervene if necessary. The proposed measures are:

  • a new reporting requirement on SMS firms to inform the CMA of all mergers;
  • a broader jurisdiction for the CMA to review SMS mergers, through the introduction of: a transaction value threshold; and an accompanying UK nexus test;
  • a subset of the largest transactions by firms with SMS to potentially undergo a mandatory merger review prior to completion; and
  • changing the threshold at which the CMA can intervene in a merger, by amending the probability standard used in the Phase 2 investigation.

If adopted in their current form, the EC and UK proposals could have fundamental implications for mobile ecosystems, digital advertising and e-commerce. Some contributors to this Guide warn that the proposals could have unintended consequences. For example, Derek Holt and Felix Hammeke suggest that data interoperability remedies – giving competitors real-time access to standardised data through application program interfaces (APIs) – could dilute the incentives of platforms to gather the data in the first place.[4] More generally, these authors also note that ‘any regulation of marketplaces could lead to distortions of dynamic competition. If potential entrants knew that they would be subject to regulation and unable to self-preference, they may not try to compete for the development of alternative marketplaces, but content themselves with the provision of complementary services’.

In addition, there is a risk that, as more jurisdictions adopt their own rules without dialogue and coordination, undertakings that operate globally will be subject to a patchwork of national rules based on inconsistent or even conflicting approaches, principles and concepts resulting in high compliance costs at best and chilling competition and innovation at worst. The question of how to ensure global regulatory alignment is therefore an important one for legislators and governments to consider.

Legislative developments: enhancing competition enforcement powers

Some jurisdictions in Europe have focused on amending their existing competition laws to enhance competition enforcement powers in relation to digital markets. For example, at the start of 2021, Germany made changes to its competition act (the German Act against Restraints of Competition) to further strengthen the Bundeskartellamt’s power to regulate the conduct of digital platforms.[5] The changes mainly tightened the control of abusive conduct in the context of digital markets. They, for example, allow the Bundeskartellamt to intervene at an early stage in cases where ‘competition is threatened by certain large digital companies’. As a preventive measure, the Bundeskartellamt can prohibit certain types of conduct by companies that, owing to their strategic position and their resources, are of ‘paramount cross-market significance for competition’. Such conduct includes ‘the self-preferencing of a group’s own services or impeding third companies from entering the market by processing data relevant for competition’. It remains to be seen how these provisions will interact with the EU’s ex ante regulation once the latter come into force.

Trends in decisional practice – antitrust

The EC’s press release announcing the DMA indicates that the proposed act builds on, among other things, ‘the Commission’s extensive experience in dealing with online markets through competition law enforcement.’[6] The EC’s enforcement in this area has continued over the past year, but there has also been significant action at the national level in Europe.

Enforcement relating to anticompetitive arrangements

Recent Article 101 (and equivalent national provisions) cases in relation to e-commerce and platforms include:

  • pricing algorithms cases, such as the Danish case involving Ageras A/S.[7] In June 2020, Ageras A/S entered into a settlement with the Danish competition authority and accepted a fine for infringing the Danish Competition Act by using a price standardisation mechanism and setting minimum prices on the platform ageras.dk, which connects users (typically smaller companies) with professional service providers such as accountants, bookkeepers and lawyers. Several investigations that address similar topics are still pending;[8]
  • European agencies have also continued to take enforcement action against wide most-favoured-nation (MFNs) clauses. For example, in November 2020, the UK competition authority fined insurance price comparison website, CompareTheMarket, £17.9 million for its use of wide MFNs;[9] and
  • dual pricing cases, for example, in January 2021, the French Competition Authority adopted a decision accepting commitments offered by Lego in relation to an offline versus online rebate scheme that the authority had found to be anticompetitive.[10]

Vertical restraints in digital markets will continue to be a focus for the EC over the next few months as it reviews the Vertical Block Exemption Regulation (VBER) (which expires in May 2022) and accompanying guidelines (the Vertical Guidelines (VGL)).[11] The main objectives of the review are informed by the Commission’s experience over the past few years, including in relation to digital markets. When publishing the draft revised VBER and VGL in July 2021, it identified the following objectives:

  • readjusting the safe harbour provided by the VBER to:
    • eliminate false positives (where things are included in the VBER safe harbour that should not be so included and rather should be included under an individual Article 101(3) assessment); and
    • reduce false negatives (where efficiencies mean that the practices should be covered by the VBER). For example, the Commission’s evaluation showed increasing numbers of enforcement actions that focused on parity clauses or MFNs relating to indirect sales channels (e.g., other platforms) and its consultation has shown that wide MFNs at retail level are a concern but there may be efficiencies arising from narrow MFNs. The Commission’s draft revised VBER and VGL, therefore, propose to remove the benefit of the VBER for cross-platform retail parity obligations imposed by providers of online intermediation services. But narrow retail parity obligations (i.e., parity obligations relating to direct sales or marketing channels) and wholesale parity obligations would still be covered by the VBER provided the general conditions for the application of the VBER are fulfilled;[12]
  • providing stakeholders with up-to-date guidance for a business environment reshaped by the growth of e-commerce and online platforms and ensuring a more harmonised application of the vertical rules across the EU. For example, the draft rules:
    • provide more examples to assist with self-assessments, particularly concerning online platforms;
    • seek to align with existing precedent and EC practice resulting from judgments like Coty;[13] and
    • define Online Intermediation Services (OIS) providers as suppliers (in line with the Platform to Business Regulation) such that OIS providers can benefit from VBER rules relating to suppliers; and
  • reducing compliance costs for businesses by simplifying complex areas of the current rules and streamlining the existing guidance. For example, the structure of the draft revised Vertical Guidelines has been simplified and the new structure combines the previously scattered guidance on resale price maintenance in one dedicated section.[14]

Similarly, the European Commission is conducting a review of its Guidelines on horizontal cooperation agreements (the Horizontal Guidelines). In its related Inception Impact Assessment and Staff Working Document it notes that the Guidelines do not sufficiently reflect the impact of the digitisation of the economy.[15] Aside from modernising the Horizontal Guidelines more generally, the EC is considering introducing specific guidance in new areas such as data sharing and data pooling initiatives to help undertakings self-assess their agreements and provide more legal certainty.[16]

Flurry of abuse of dominance cases across Europe

The EC and national competition agencies in Europe have also launched or continued abuse of dominance investigations against tech companies with key areas of focus including the dual role of platforms and the impact of ‘closed ecosystems’ on competition. For example:

  • There are ongoing investigations against Apple in relation to its App Store or iOS by the EC, France’s Autorité de la Concurrence, Germany’s Bundeskartellamt, the Dutch Autoriteit Consument en Markt (ACM) and the CMA.[17]
  • The EC is investigating Amazon’s use of marketplace seller data and its e-commerce business practices. The EC also opened a second antitrust investigation into Amazon’s business practices that might artificially favour Amazon’s own retail offers and offers to marketplace sellers that use Amazon’s logistics and delivery services (Buy Box).[18] The Bundeskartellamt also initiated proceedings against Amazon, on 18 May 2021, based on the new rules for large digital companies.[19]
  • Ongoing abuse of dominance investigations against Facebook include an EC investigation in relation to the use of advertising data,[20] and an investigation launched by the Bundeskartellamt in December 2020 examining the linkage between Oculus virtual reality products and the Facebook social network and platform. On 28 January 2021, the Bundeskartellamt extended the scope of its proceedings, also examining whether Facebook is subject to the new rules for large digital companies and whether its arrangements with Oculus should be assessed on this basis.[21] Meanwhile, a 2019 decision of the Bundeskartellamt against Facebook for alleged abusive terms of use continues to be the subject of ongoing legal proceedings with the Higher Regional Court of Düsseldorf halting the proceedings and filing a request for preliminary ruling to the European Court of Justice in the latest twist to this long-running saga.[22]
  • Further, the EC has an ongoing case against Google in relation to online display advertising technology;[23] and the Bundeskartellamt launched proceedings against Google under the new rules for large digital companies.[24]

Trends in decisional practice – merger control

Merger control assessment of tech deals: focus on innovation

Transactions in the digital sector have started to receive greater scrutiny from European competition agencies and this trend is likely to continue for the foreseeable future. In terms of substance, the competition agencies’ assessment of horizontal mergers in digital markets has focused on loss of potential or innovation competition and related evidence. One of the much-talked about cases in this context is the Google/Fitbit case. In December 2020, after an in-depth Phase II investigation, the EC conditionally cleared the Google/Fitbit deal. The decision provides insight into the EC’s thinking on the importance of data in mergers and what it calls the ‘nascent’ digital healthcare market. The EC identified three concerns about the transaction, but it concluded that each of these concerns could be addressed through behavioural commitments offered by Google.[25] The deal also secured conditional clearance in South Africa and Japan.[26] Merger control investigations in Australia, Brazil and the US are ongoing.

In the past couple of years, the UK’s CMA has also increased its scrutiny of mergers involving digital firms exploring new theories of harm, looking at high transaction valuations as potentially indicative of harm, conducting in-depth searches of internal documents and imposing wide-ranging interim measures (initial enforcement orders or IEOs).[27] In March 2021, the CMA also updated its merger assessment guidelines to reflect learnings from these recent cases and the CMA’s increased focus on innovation as a parameter of competition.[28]

Procedural challenges – asserting jurisdiction or overreach?

Horizontal mergers in digital markets have also raised interesting procedural questions, including whether existing jurisdictional thresholds are effective in the context of the digital economy – but also pharmaceutical sectors – where the focus is on innovation and potential growth. European governments and competition agencies have, however, expanded their jurisdiction in different ways.[29] Germany and Austria responded to this debate by introducing new jurisdictional thresholds (in particular size-of-transaction tests) while the UK is considering a similar approach in the context of its plans for digital regulation, as discussed above.[30] The UK’s CMA has, however, not waited for these proposals to become law to take an increasingly expansive and creative approach to the jurisdictional scope of UK merger control, including in relation to tech mergers. For example, in Amazon/Deliveroo, it adopted a broad interpretation of the ‘material influence’ concept.[31] The CMA established jurisdiction over Amazon’s acquisition of a 16 per cent interest in Deliveroo, finding material influence based on certain factors relating to Amazon’s specific status and board representation. In Facebook/GIPHY, the CMA established jurisdiction by applying the ‘share of supply’ test on two distinct grounds even though GIPHY does not generate any turnover in the UK.[32]

At the EU level, there are no plans to amend the jurisdictional thresholds set out in the legislative framework (the EU Merger Regulation), and an EC Staff Working Document, published in March 2021, explicitly rejects the proposal for a value-based benchmark.[33] However, that same month, the EC announced an overhaul of its approach to the use of the referral mechanism in Article 22 of the EU Merger Regulation to review transactions falling below EU and national merger review thresholds.[34] The EC had until then developed a practice of discouraging Article 22 referral requests from Member States ‘that did not have original jurisdiction over the transaction at stake’. In its new guidance on these referrals it notes, however, that:

market developments have resulted in a gradual increase of concentrations involving firms that play or may develop into playing a significant competitive role on the market(s) at stake despite generating little or no turnover at the moment of the concentration. These developments appear particularly significant in the digital economy, where services regularly launch with the aim of building up a significant user base and/or commercially valuable data inventories, before seeking to monetise the business. Similarly, in sectors such as pharmaceuticals and others where innovation is an important parameter of competition, there have been transactions involving innovative companies conducting research & development projects and with strong competitive potential, even if these companies have not yet finalised, let alone exploited commercially, the results of their innovation activities.

Companies and business advocacy organisations have pushed back on this new approach, indicating that the move away from turnover-based thresholds for notifying concentrations significantly undermines legal certainty.[35] There are also legal proceedings against the EC pending before the Court in Luxembourg on this issue.[36]


Notes

1 Claire Jeffs is a partner and Nele Dhondt is a PSL counsel at Slaughter and May.

2 This chapter focuses on legislative developments and decisional practice over the past year or so up to and including 30 September 2021. For a summary of older developments and practice, please refer to the other chapters in this section of the Guide.

3 The proposals are still subject to the (ordinary) legislative procedure involving the European Parliament and Council of the EU (representing the governments of the Member States) and these discussions may significantly shape the final rules adopted. They are expected to come into force in 2023.

4 Derek Holt and Felix Hammeke, ‘European Union: Two-Sided Markets, Platforms and Network Effects’, Chapter 6 of this Guide.

5 Press release of Bundeskartellamt, Amendment of the German Act against Restraint of Competition, 19 January 2021, available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2021/19_01_2021_GWB%20Novelle.html?nn=3591568.

6 European Commission, Europe fit for the Digital Age: Commission proposes new rules for digital platforms, IP/20/2347, 15 December 2020.

7 This case is also discussed in Ingrid Vandenborre and Michael J Frese, ‘Pricing Algorithms under EU Competition Law’, Chapter 4 of this Guide.

8 For example, the Spanish competition authority (CNMC) has opened an investigation into anticompetitive agreements in the real estate intermediation market. The CNMC is investigating whether this coordination was implemented by means of software and digital platforms and is exploring whether the conduct has been facilitated by IT firms offering real estate brokerage software and algorithms. For more on pricing algorithms under EU Competition Law, please refer to the contribution by Ingrid Vandenborre and Michael J Frese in Chapter 4 of this Guide.

9 The CMA found that CompareTheMarket’s use of wide MFNs violated both Section 2(1) of the UK’s Competition Act 1998 and Article 101 TFEU – Decision of the UK Competition and Markets Authority, Price comparison website: use of most favoured nation clauses (Case 50505) (dated 19 November 2020). The undertaking has appealed the decision before the (UK) Competition Appeal Tribunal.

10 Lego implemented a rebate scheme that offered additional discounts to reward certain qualitative physical store features, such as extra shelf space for example. However, online resellers could not have access to these discounts. This practice amounted to dual pricing since Lego essentially charged offline or hybrid dealers a better sales price post-discount compared to online resellers. Lego agreed to change its rebate scheme and the authority closed the investigation based on the company’s commitments. See also Stephen Mavroghenis and Zena Prodromou, ‘European Union: Restrictions of Online Sales’, Chapter 2 of this Guide.

11 See also Stephen Mavroghenis and Zena Prodromou, ‘European Union: Restrictions of Online Sales’, Chapter 2 of this Guide.

12 See also Philippe Chappatte and Kerry O’Connell, ‘E-Commerce: Most Favoured Nation Clauses’, Chapter 3 of this Guide.

13 This landmark ruling shed more light on the extent to which selective distribution systems can be used by manufacturers to restrict distributors in their use of online marketplaces. It confirmed the European Commission’s view that platform bans in selective distribution agreements benefit from the Commission’s VBER. Judgment of 6 December 2017, Coty Germany GmbH v. Parfümerie Akzente GmbH, C-230/16.

14 Background note accompanying the public consultation of the draft revised VBER and Vertical Guidelines, available at: https://ec.europa.eu/competition-policy/public-consultations/2021-vber_en.

15 Links to the Inception Impact Assessment and Staff Working Document are available on the European Commission’s website at https://ec.europa.eu/competition-policy/public-consultations/2019-hbers_en.

16 Respondents to the Commission’s consultation also noted that there is too little guidance in the Guidelines on the use of algorithms. See also ‘Pricing Algorithms under EU Competition Law’, Chapter 4 of this Guide, Ingrid Vandenborre and Michael J Frese. In the absence of specific guidance, these authors identify some high-level principles based on past investigations and existing Commission guidelines in their Chapter.

17 In June 2020, the EC opened a formal investigation into Apple’s app store rules concerning music streaming, which resulted in a Statement of Objections in April 2021. The SO accuses the company of distorting competition in the music streaming market by abusing its dominance for the distribution of music streaming apps through its App Store (Case AT.40437; related press release is available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1073). The French competition authority started investigating Apple’s practices concerning data protection policies in October 2020 after receiving complaints from advertisers. The authority, however, refused a request for interim measures against Apple. More detail here: https://www.autoritedelaconcurrence.fr/en/press-release/targeted-advertising-apples-implementation-att-framework-autorite-does-not-issue. The Bundeskartellamt opened an investigation into Apple on 21 June 2021, under the reformed competition act’s Section 19 for anticompetitive behaviour by large digital companies, examining Apple’s significance for competition across markets (the press release is available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2021/21_06_2021_Apple.html). Meanwhile, the Dutch investigation focuses on the conditions that Apple attaches to the use of the App Store by app providers that offer apps that do not compete with Apple’s apps – https://www.acm.nl/en/publications/acm-can-continue-its-investigation-apple-app-store. Finally, the CMA launched an investigation into Apple in March 2021 following complaints that its terms and conditions for app developers are unfair and anticompetitive. The press release is available at: https://www.gov.uk/government/news/cma-investigates-apple-over-suspected-anti-competitive-behaviour. The CMA also launched a market study into Apple’s and Google’s mobile ecosystems. Press release, CMA to scrutinise Apple and Google mobile ecosystems, 15 June 2021. ‘Mobile ecosystems’ refers to the collection of gateways (operating systems (iOS and Android), app stores (App Store and Play Store) and web browsers (Safari and Chrome)) through which consumers can access a variety of products, content and services, such as music, TV and video streaming, as well as fitness tracking, shopping and banking. According to the CMA, these products also include other technology and devices such as smart speakers, smart watches, home security and lighting (which mobiles can connect to and control).

18 Press release is available here: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077. The EC launched its in-depth investigation into Amazon’s use of marketplace seller data in July 2019. On 10 November 2020, the EC issued a Statement of Objections to Amazon informing it of its preliminary view that Amazon has breached EU antitrust rules by distorting competition in the online retail markets. Case Nos. AT.40462 and AT.40703.

20 In June 2021, the EC opened a formal investigation to assess whether Facebook violated EU competition rules by using advertising data gathered in particular from advertisers in order to compete with them in markets where Facebook is active such as classified ads. The formal investigation also relates to whether Facebook ties its online classified ads service ‘Facebook Marketplace’ to its social network, in breach of the competition rules. Case No. AT.40684. The related press release is available here: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_2848.

22 In February 2019, the Bundeskartellamt concluded that Facebook’s collection of its users’ data as a condition of the use of its platforms amounted to an abuse of its market power. It decided that Facebook could only collect user data if it had its users’ ‘voluntary consent’ to pool data from other services with its own Facebook user data. The authority ordered the company to stop collecting user data from third-party websites. The authority also ordered that if consent was not given for data from Facebook-owned services and third party websites, Facebook had to substantially restrict its collection and combining of data. Facebook appealed the decision in August 2019 and the German court has now lodged a request for a preliminary ruling to the European Court of Justice. See Case C-252/21, Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 22 April 2021 — Facebook Inc. and Others v. Bundeskartellamt. A statement of the Düsseldorf court reads: ‘The question of whether Facebook is abusing its dominant position as a provider on the German market for social networks, because it collects and uses the data of its users in violation of the GDPR, cannot be decided without referring to the ECJ’.

23 Commission opens investigation into possible anticompetitive conduct by Google in the online advertising technology sector, 22 June 2021, IP/21/3143. Case No. AT.40670.

25 EC Press release, Mergers: Commission clears acquisition of Fitbit by Google, subject to conditions, 17 December 2020. Case M.9660 Google/Fitbit. For an in-depth analysis of the EC’s decision in Google/Fitbit, see Gerwin Van Gerven, Annamaria Mangiaracina, Will Leslie and Lodewick Prompers, ‘Data and Privacy in EU Merger Control’, Chapter 5 of this Guide.

26 The Japan Fair Trade Commission approved the transaction on 14 January 2021 under similar conditions to those in the EU. The South Africa Competition Commission conditional approval was announced on 22 December 2020.

27 For example, the CMA issued five IEOs in respect of Facebook’s completed acquisition of GIPHY, which Facebook challenged before the Competition Appeal Tribunal (CAT). The CAT, however, dismissed Facebook’s grounds of appeal concluding, inter alia, that the nature of the UK merger control system justified the CMA’s cautionary approach in this case, and that the CMA has a considerable margin of appreciation.

28 CMA Merger Assessment Guidelines (CMA129).

29 See also Gerwin Van Gerven, Annamaria Mangiaracina, Will Leslie and Lodewick Prompers, ‘Data and Privacy in EU Merger Control’, Chapter 5 of this this Guide.

30 The concern is that existing tests based on turnover do not always catch transactions of competitive significance.

31 Under the UK merger control regime, a ‘relevant merger situation’ (i.e., a transaction potentially qualifying for review) occurs when two or more enterprises have ceased to be distinct. This can occur either through common ownership or common control. Common ownership involves the acquisition of an enterprise so that two previously distinct enterprises become one. Common control involves the acquisition of at least one of the following: de jure or legal control (a controlling interest); de facto control (control of commercial policy); or material influence (the ability to make or influence commercial policy).

32 Under the UK merger control regime, a relevant merger situation will qualify for review if it meets the turnover test or the share of supply test. Where the UK turnover of the target exceeds £70 million, the turnover test will be satisfied. The share of supply test will be satisfied where the merger creates an enlarged business supplying 25 per cent or more of goods or services of any reasonable description or enhances a pre-existing share of supply of 25 per cent or more. In Facebook/GIPHY, the CMA calculated the parties’ combined share of apps that allow UK users to search for GIFs (measured by average monthly searches), and the parties’ combined share of searchable animated sticker libraries supplied to UK users (measured by sticker library size).

33 Commission Staff Working Document – Evaluation of procedural and jurisdictional aspects of EU merger control, 26 March 2021.

34 Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases, C(2021)1959, 26 March 2021. The guidance states: ‘Article 22 of the Merger Regulation allows for one or more Member States to request the Commission to examine, for those Member States, any concentration that does not have an EU dimension but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request. It is clear from the wording, the legislative history and the purpose of Article 22 of the Merger Regulation, as well as from the Commission´s enforcement practice, that Article 22 is applicable to all concentrations, not only those that meet the respective jurisdictional criteria of the referring Member States.’

35 See, for example, the letter of the US Chamber of Commerce to DG Comp at the EC on the new approach in July 2021, available at: https://www.uschamber.com/comment/us-chamber-letter-eu-merger-regulation.

36 Illumina filed an action in the General Court of the European Union asking for annulment of the EC’s decision asserting jurisdiction to review Illumina’s acquisition of GRAIL. The Commission asserted jurisdiction to review the acquisition under Article 22 of the EU Merger Regulation on 19 April 2021, seven months after the deal was announced. Action brought on 28 April 2021, Illumina v. Commission, Case T-227/21.

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