22 June 2020

Merger control: Concept of significant impediment to effective competition
Article 2(3) of Regulation No 139/2004 allows the Commission to prohibit, in certain circumstances, on oligopolistic markets concentrations which, although not giving rise to the creation or strengthening of an individual or collective dominant position, are liable to affect the competitive conditions on the market to an extent equivalent to that attributable to such positions, by conferring on the merged entity the power to enable it to determine, by itself, the parameters of competition and, in particular, to become a price maker instead of remaining a price taker.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Merger control: Concept of significant impediment to effective competition
The concentration must lead to the elimination of the important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, for, under certain circumstances, the non-coordinated effects arising from the operation – in application of Article 2(3) of Regulation No 139/2004 read in the light of recital 25 of that regulation – to result in a significant impediment to effective competition.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Merger control: Concept of significant impediment to effective competition
While indicators of upward pressure on prices such as GUPPI or UPP analysis may be useful for screening purposes, by enabling the competition authorities to judge the need for a more thorough investigation, they must not be regarded as credible forecasts of price increases or simulations of mergers.
GC, Case T 399/16 CK Telecoms UK Investments Ltd, Judgment of 28 May 2020, LawLex20200000537JBJ

Unfair terms: Role of court
Article 7(1) of Directive No 93/13 precludes the interpretation of a national provision whereby a court hearing an action brought against a consumer by a seller or supplier, which falls within the scope of that directive, and giving judgment in default, where that consumer has failed to appear at the hearing to which he was invited, is prevented from adopting the measures of inquiry needed in order to examine of its own motion whether the contractual terms on which the seller or supplier based its action are unfair, when that court has doubts as to whether those terms are unfair.
CJEU Case C 495/19 Kancelaria Medius SA, Judgment of 4 June 2020, LawLex20200000530JBJ

Public procurement: Economic operator
Directive No 2014/24, which states explicitly that the concept of economic operator is to be interpreted in a broad manner so as to include any persons or entities active on the market irrespective of the legal form under which they have chosen to operate precludes a national law which prohibits a non-profit foundation entitled to offer certain services on the domestic market from taking part in procurement procedures for the award of public contracts for the provision of those services.
CJEU, Case C 219/19 Parsec Fondazione Parco delle Scienze e della Cultura Judgment of 11 June 2020, LawLex20200000531JBJ

Public procurement: Public contracts between entities within the public sector
The concept of cooperation, at the very heart of the exclusion laid down in Article 12(4)(a) of Directive No 2014/24 relative to public contracts between entities within the public sector, cannot be said to exist where a contracting authority which is responsible for a task in the public interest within its territory does not itself perform the entirety of that task — which is incumbent on it alone under national law and for the performance of which a number of operations are required — but rather commissions another contracting authority that is independent of it and is likewise responsible for that public interest task within its own territory to carry out one of the operations required in return for consideration.
CJEU, Case C 429/19 Remondis GmbH, Judgment of 4 June 2020, LawLex20200000535JBJ

Copyright and related rights: Reproduction right
A product satisfying the condition of originality may be eligible for copyright protection, even if its realization has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices.
CJEU, Case C-833/18 SI and Brompton Bicycle Ltd 11 June 2020, LawLex20200000536JBJ