In May 2015, the European Commission launched the e-commerce sector inquiry in order to identify potential competition concerns in European e-commerce markets.
The preliminary report of the inquiry published on 15 September 2016 has, on the one hand, confirmed the growing importance of the sector and, on the other hand, identified a series of potentially restrictive practices. The Commission aims at encouraging companies to review their distribution contracts in order to align them to EU Competition law.
In particular, the Commission has found that, in order to have a better control of the distribution of their products, manufacturers tend to put in place selective distribution systems and to sell on-line directly to their customers. Distribution agreements normally include a list of contractual sales restrictions, which, under certain conditions, may render on-line shopping more complicated and, ultimately, result in consumers´ harm.
The preliminary report also contains some reflections with regard to digital content. Copyright licensing agreements have been found to be complex and often exclusive. These agreements usually restrict the territory, technology and windows that can be used by digital content providers. Furthermore, the Commission has emphasized that where geo-blocking results from an agreement between suppliers and distributors, it has the potential to restrict competition in the EU internal market and, consequently, breach Article 101 of the TFEU.
During a two month period, the report will be open to public consultation providing stakeholders with the possibility to submit comments or any additional information they may have. The final report is expected to be published in the first quarter of 2017.
Spanish Court has ruled that dawn-raids carried out by the Spanish Competition Authority against candy companies in 2013 did not breach privacy rights
In November 2013, the Spanish Competition Authority (“Comisión Nacional de los Mercados y la Competencia” or “CNMC”) carried out a series of dawn-raids in the premises of several candy manufacturers. The suspicion was that the companies had engaged in price fixing and market sharing agreements in the market of “turrón”, a traditional Spanish Christmas sweet.
In 2016, the companies were fined EUR 6.12 million by the CNMC for price fixing and exchange of information.
One of the fined companies, Almendra y Miel, together with its parent company and an employee, brought an action before the Spanish competent court (“Audiencia Nacional”) challenging the lawfulness of the dawn-raids. One of the arguments referred to the fact that the CNMC´s investigators had accessed electronic data stored on a mobile phone, which were of no relevance for the investigation and which were not covered by the investigation´s order. On these grounds, the claimants argued that there had been a breach of privacy rights.
The judgment rendered by the Audiencia Nacional on 18 July 2016, but only disclosed to the public recently, has found there was no breach of privacy rights during the performance of the dawn-raids. The court has also concluded that the investigation order entitled the investigators to access agendas of employees, which included their mobile phones.
