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Barbara Brandtner

Director COMP.D, Markets and Cases III – Financial Services, DG Competition

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Regulating the Financial Services Sector: A View from EU

Regulating FinTech:
Digital Markets Act: repercussions for financial services
UK DMU
PSD2 and its likely impact on big tech in the financial services sector
How does competition law handle innovation in financial services sector?
Review of Open Banking: how successful was the initiative?
Open Finance and Open Data: concerns from competition law perspective

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Solomon Osagie

General Counsel & Company Secretary 

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Open Banking / Open Finance, FinTech & Blockchain: Disruption in the Financial World

Review of the updated EU horizontal guidelines
How is the UK likely to reform horizontal guidelines?
What information can be shared?  
Industry cooperation: how to structure it?
Implications for ESG and sustainability initiatives

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Stephen Whitfield

Partner

 Information Exchange & Industry Cooperation

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Francesca  Amore

Consultant

 Private Enforcement & Follow-on Damages

UK’s proposals for new merger control guidelines: implications for financial services sector 
Killer acquisitions in the FinTech sector
Approaches to vertical mergers
Behavioural remedies vs structural remedies: divergence of approaches between EU and UK and implications for FinTech sector  
Proposals to update US merger guidelines in banking
Foreign direct investment regime: what does it mean for financial services sector?
Merger control in times of crisis

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Elvira Aliende Rodriguez

Merger Control & FDI Developments

Competition Law in the Financial Services Sector 2022

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 A View from the Commission

Overview of Illumina/ Grail judgement
How are member states approaching Article 22?
Strategies to navigate the new complex landscape: recommendations for transactional security

Review of Article 22 after Illumina/Grail

What is the relationship between NCA and European Commission referrals?
Bundeskartellamt’s approach to Kustomer/ Meta merger
UK: do recent updates to the UK CMA’s Merger Assessment Guidelines signal a concern about under-enforcement of non-horizontal mergers?
Approaches to remedies: structural vs behavioural

Developments at Key Jurisdictions

Emerging Theories of Harm: Killer Acquisitions, Vertical Mergers & Innovation

Multijurisdicational mergers: how best to plan transactions?
Timing strategy
Where go first?
Tips for managing parallel EU, UK and US investigations
How to manage different outcomes
Is merger control becoming more political? How to ensure transaction security?
Privilege and information sharing
Extraterritorial transactions, when to file and when not to file in jurisdictions where you don’t have material issues
A look to the US: proposals for new merger guidelines

Strategies for Managing Multijurisdictional Mergers

Interaction of FDI and merger control regimes
Procedural issues including timelines
How best to structure transactions to navigate the new complexity
Proposals for foreign subsidies regulation and implications for mergers

Interplay of Foreign Direct Investment Regimes, Foreign Subsidies Regulation & Merger Control

Digital Markets Act and merger notification obligations for gatekeepers
How will this function in practice
How will this work in conjunction with Article 22
Lessons learnt from significant digital mergers Meta/ Kustomer, Facebook/ Giphy cases
Review of market definition notice: how should market definition be approached in digital markets, two sided markets, platforms etc

Merger Control in Digital Markets, including Obligations under DMA

Simplification of merger control procedure
Is there a need for new pre-notification period guidelines?
Gunjumping including judgments in Altice and Canon 
Handiling forensic document request
Misleading information
How best to structure transactions which need quick clearance in light of gunjumping developments    

Gunjumping, Misleading Information & Other Procedural Developments

EU Merger Control 2022

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Chair’s Welcome and Introduction

Presentation on the Digital Markets Act (DMA), including thresholds and how they will be assessed
Preparation for implementation

Digital Markets Act (DMA)

Review of DSA, DGA, Data Act and AI Act: how will the new acts be enforced?
Where do new regulations leave competition law?
What will be enforced under new rules and what will be enforced under competition law?
Divergence of regulation
Concurrent legislation
What do regulators need to do to match dynamic digital industry? 
Review of regulation 1/2003 and right of defence
Implications for corporates: what does it mean to be a regulated industry and how should businesses be structured?

The New Regulatory Landscape: How will the New Regulations Fit Together and Where does it Leave Competition Law?

Implications for corporates: what does it mean to be a regulated industry?
How should businesses be structured?
Implications for compliance

The New Regulatory Landscape: A View from In-house Counsel

Review of recent cases including Qualcomm, Google shopping cases, German Facebook case and others   

Update on Article 102 Enforcement

Review of key developments at national level including:
Italian Google case
French Cloud Sector Enquiry and update on recent decisions
Experiences from Germany in applying § 19a
DMA and the role of National Competition Authorities in enforcement
Horizon scanning: what will the authorities look at next?
Is there coordinated action between authorities?

How are National Competition Authorities Approaching Digital Markets?

Theories of harm: understanding market dynamics in the digital context
How should markets be defined in data driven markets?
Update on the Commission's market definition guidelines: SNIPP test and multisided markets

Market Definition & Market Power in Data Driven Markets

Where are we with the DMU?
Review of recent cases
Is the UK approach diverging from EU?

UK’s Approach to Digital Markets

Competition Law in the Digital Era 2022

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 European Commission’s Current Priorities in the Aviation Sector

 Green Deal, Fit for 55 & Sustainability in the Aviation Sector

 Navigating State Aid in a Post-Pandemic Environment

 Regulating the Aviation Sector in 2022

 Merger Control: How are Global Authorities Approaching Consolidation?

 Alliances, Joint Ventures & Code Sharing

 Online Ticket Distribution: Implications of VBER

Competition Law in the Aviation Sector 2022

What are the substantive obligations? What do they mean and how should they be interpreted?
What will success look like for DMA?
How will regulators stop big tech from exploiting enforcement loopholes?
Implications for compliance

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 Review of the Digital Markets Act

What will be EC and NCAs role in enforcing DMA?
Will regulators continue using classic tools e.g. Article 102 or refer to the new DMA?
How will case allocation and case prioritisation work?
How will DMA interact with national enforcement?
Update on Germany’s new regulatory instruments
Review of national enforcement including ACM fines on Apple

 Policing Digital Markets: Using New Tools in the Tool Kit

How will non dominant companies/ non-gatekeepers enforce infringements?
How do non-dominant players see DMA?
How to get access to essential facilities like data pools?
How is this likely to be dealt with in practice in fast-moving markets?

DMA: Implications for Non-Dominant Players

How will DMA and GDPR interact?
CJEU’s German Facebook preliminary reference
Proposals for EU Data Act: what will the obligations be?
Interoperability & access to data: How to design effective remedies regarding data-sharing and interoperability that respect the GDPR

Intersection of Competition Law & Privacy

How to prepare?
Access to algorithms
Role auditors and experts
Similarities/differences with antitrust raids
Recent personal experience in antitrust raids/possible implications DMA raids

Dawn Raids & DMA

CMA’s Digital Markets Unit: what are its aims and purposes?
Will there be a UK regulation to mirror DMA?
Practical lessons learnt from CMA’s recent studies and investigations
Regulatory future and potential divergence between the UK and Europe

Review of recent significant mergers
The role of big data and innovation in mergers
Killer acquisitions
How can you determine if someone is a potential competitor?
The use of efficiency defence
How are the Commission and National Competition Authorities approaching dynamic markets?
Innovation based theories of harm

Merger Control in Dynamic Markets, including Innovation Theories of Harm

Review of competition claims against big tech: abuse of dominance and unfair trading practices claims
How are the Courts receiving big tech cases?
What is the interplay between Article 102 cases and consumer protection? Is competition law being used to deal with big tech cases as it is so flexible?
What will be the impact of DMA for private enforcement?
Economic perspectives on big tech cases: how is the approach different to cartel cases?

Private Enforcement of Competition Law in the Digital Sphere

A View from the European Commission

Legislation – adopted and proposed, including:
DMA/DSA – Digital Regulation
Collective bargaining for self-employed notice
Vertical BE and VG
Draft Horizontal BEs and Guidelines (including sustainability section)
Market Definition Notice?
ECJ/GC cases on:
General principles, including Ne bis in idem (NordZucker and bpost)
Cartel appeals, including the GC’s Airfreight rulings
Article 102 TFEU and exclusionary practices (Servizio Elettrico Nazionale)
EC Decisions including:
The Forex and Ethanol cartels
The Car emissions decision and DC COMP letter
Policy initiatives
A revised Regulation 1/2003

Major Events and Policy Issues in EU Competition Law 2021-2022

The new VBER
What are the first practical impressions of the new regulation?
How are businesses working with the new VBER?
What counts as a true agent?
Have the rules on RPM been relaxed? If so, what could be the practical implications for dealer pricing and loss leader retail price maintenance etc
Implications for platforms and dual distribution
Data sharing and information exchange
Update on UK VABEO

Vertical Restraints: Practical Review of the New VBER

Information Exchange, including Due Diligence/MnA, signalling, Hub n Spoke
Joint purchasing
Sustainability agreements

 Review of the Draft Rules on Horizontal Restraints of Competition

Update on the latest consultation and VBER
Dual distribution under the DMA: retailers as gatekeepers
How does the latest consultation, VBER and DMA fit together?
Implications for hybrid platforms
Firewalls after Hugo Boss case and the Commission’s dual distribution guidelines
Parity clauses

Dual Distribution

Review of significant decisions at EU and national level
The fall in immunity applications and countermeasures
Review of significant NCA decisions
Cartel screening tools: use of algorithms and machine learning and implications for cartel detection
No poach
Key judgments at the Courts

Cartels: Lessons Learnt from Recent Investigations

What is the guidance in the new proposed Horizontal Block Exemption Regulation on sustainability?
Sustainability guidelines in agriculture including Farm to Fork initiative
National initiatives: Netherlands, Greece, Austria’s position and what are their implications in light of overarching Art. 101 TFEU
How to quantify sustainability efficiencies in horizontal agreements, merger control etc
What are the stepping stones in proving sustainability efficiencies?
What can competition law do to ensure a better world?

Sustainability, ESG & Competition Policy

Review of developments in key jurisdictions
Approaches to class/ collective actions
Parental liability after Sumal
Disclosure developments
Quantification of damages

Private Enforcement & Follow-on Damages

A View from the Court

Revision of the simplified merger procedure
Article 22 referrals including Illumina/ GRAIL case
Killer and reverse killer acquisitions
Discrepancy in approaches at national level
Data, innovation and other non-price factors in mergers
Failing firm defence
Debate on common shareholdings by institutional investors
Lessons learnt from significant Phase II investigations
Remedies and commitments
Gun jumping developments

Merger Control: Review of Recent Procedural & Case Law Developments

How to deal with Art. 22 EUMR and voluntary merger regimes such as UK in SPA negotiations
How best to advise clients in light of Article 22
Preparation, evidence collection and how best to deal with information requests
CMA’s approach: new global regulator?
Multijurisdictional merges: practical pointers including how to manage conflicting decisions from different authorities

Merger Control in Practice: Handling the New Uncertainty

Market definition: draft notice, policy context
Industrial strategy, killer acquisitions, digital markets
The role of economic analysis in merger control
Market concentration
Theories of harm
Burden and standard of proof
Quantitative techniques

Market Definition & Economics of Merger Control

Review of Digital Markets Act
Substantive obligations: what are they likely to mean in practice?
What will be the role of EC and NCAs in enforcement?
How will case allocation and case prioritisation work?
How will DMA interact with national developments e.g. Germany’s new regulatory instruments?
Update on CMA’s approach: what are the parallels and divergences? 
How should companies comply with the DMA

Digital Markets: Brave New World of Regulation

Review of recent cases, including Google Shopping, Intel and Servier
Defining markets
Update on exclusionary conduct and rebates
Excessive pricing in the pharma sector cases
Essential facilities
Market leveraging
Showing anti-competitive effects

 Article 102: Principles, Decisions and Practice

New framework in response to the energy crisis and Ukraine
State aid: broadband and mobile related regulation and cases
State aid and COVID: what lessons can be learned from cases regarding application of the Temporary Framework? Did it distort competition?
Implications of the Green Deal on state aid law

State Aid

FDI-screening in France
FDI-screening in Germany
Cooperation under the FDI Screening Regulation
Key challenges for companies and their advisors
(Even) more screening: Foreign subsidies regulation

Foreign Direct Investment & Foreign Subsidies

Dawn raids on private homes
Preparing a company for a dawn raid
Practical tips for dealing with dawn raids
Handling requests for information
ECN+ and minimum standard of investigative tools
What lessons can be learnt from recent cases 

 The European Commission’s Investigative Toolkit

Advanced EU Competition Law, Brussels 2022

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Paul Csiszár

Director, DG Competition

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 Competition Law in the Pharmaceutical Sector: A View from the Commission

Review of EU Vifor investigation: what are the issues at stake?
Is the Commission’s approach different to recent French cases?
What advice should companies be considering in light of recent cases?

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Disparagement: Issues at Stake and Implications for Compliance

Review of topical developments in enforcement including in Belgium, Czech Republic, Italy and the Netherlands
Cooperation between enforcers within ECN+

Enforcers’ Roundtable

- Where are we with Pfizer/ Flynn after the appeals?
- Update on excessive pricing cases at national level including Leadiant in the Netherlands and the new complaints in Italy and Belgium
- Challenges in assessing and enforcing theories of harm based on excessive pricing
- Discounts and rebates: what is legitimate?  
- Price caps
- Cost-containment strategies including claw-back / pay-back mechanisms: competition law considerations
- Pricing of combination therapies from a competition law perspective

Pricing in Practice: Excessive Pricing, Rebates & Discounts

- Jurisdictions and approaches to killer acquisitions after Illumina/Grail
- Update on multilateral (FTC, EU, UK) pharmaceutical merger task force
- Is there increased scrutiny of mergers in the pharma sector?
- FDI considerations in pharmaceutical sector mergers
- Structural/ behavioural remedies and implications for pipeline products
- Market Definition: defining relevant markets in the pharma sector
- Mergers & Market Definition

Merger Control & Market Definition in the Pharma Sector: A New Tougher Approach?

- Update on the revised horizontal block exemption regulations
- R & D block exemption: key considerations for the pharma sector  
- Coordination amongst competitors: practical lessons from recent cases  
- Guidance on information exchange  

Industry Cooperation and Collaboration in Light of the Revised Horizontal Block Exemption Regulations

- Review of VBER from a pharma sector perspective
- Practical implications for distribution agreements
- The risk of information exchange within distribution scenarios: what can and can’t be shared with retailers
- Online sales including territorial restraints
- Patents exhaustion in light of territorial restraints
- Parallel trade considerations

Distribution Developments including implications of VBER for the Pharma Sector

- Update on significant recent cases including AG Opinion in Servier and the EC's Teva investigation
- Implications for patent filing strategies (in particular divisionals)
- Implications for litigation strategies
- Practical lessons learnt from reverse patent settlements

Practical Patent Strategies in Light of Recent Investigations

Competition Law in the Pharmaceutical Sector 2022

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A View from the Commission

The Relationship Between Public & Private Enforcement in Detecting Cartels
The relationship between private enforcement and leniency applications
Is there a need for leniency applicants to be taken out of liability?
Other tools for detecting cartels including cartel screening, algorithms and big data
A look at the impact of the Damages Directive

 The Relationship Between Public & Private Enforcement in Detecting Cartels

 Judges' Roundtable

Review of National Developments Across Key Jurisdictions
Review of key cases across key jurisdictions:
Netherlands
Germany
UK
Spain
Italy
Poland
Forum and law shopping: practical differences in litigating in different jurisdictions

 Review of National Developments Across Key Jurisdictions

Damages Directive: Temporal Scope & Disclosure Developments
Temporal application of the Damages Directive after Volvo and DAF Trucks
What is the scope of Article 5 of the Damages Directive?
AG Szpunar’s opinion and ex novo evidence
AG Kokott’s opinion in Trucks
Protection of confidentiality of data and documents in court
The role of economists within disclosure
Statute of limitation

 Damages Directive: Temporal Scope & Disclosure Developments

The Role of Experts & Approaches to Quantification of Damages
Role for economic expects in a class action setting.
New challenges for quantifying damages raised by the latest antitrust cases
Quantifying harm in exclusionary abuse cases
Quantifying harm in relation to non-price factors (e.g. use of data)
Quantifying harm in the presence of complex or uncertain counterfactuals
New developments in assessment of pass on

 The Role of Experts & Approaches to Quantification of Damages

Update on Class Actions & Claims Bundling
Review of recent antitrust class actions in Europe – types and trends
How the courts across Europe view it
How should claims be bundled? Policy and regulatory issues
Carriage dispute certification in the UK
How best to manage a case, conduct the damages assessment for etc in such large cases?
How best to deal with parallel, maybe even conflicting legal actions across Europe?

 Update on Class Actions & Claims Bundling

Practical Strategies: Management & Funding of Claims
How to select the best venue to bring the claim?
Funding of claims including proposals for regulation of litigation financing companies
Practical strategies for managing multijurisdictional claims including how to deal with different damages findings
Do defendants need to have a uniform strategy on how to exit actions?
Settlements: how to start the process?
Dealing with very lengthy cases