Week Ahead (8 January)

Monday, 8 January – Deadline for concessions to the European Commission for Lufthansa’s purchase of a controlling stake in ITA Airways 

Today, Lufthansa and ITA Airways will have to submit concessions in order to secure the European Commission’s green light for their proposed deal.  

On 30 November, Lufthansa and the Italian government notified the European Commission of their agreement that will see the former acquire a 41% controlling minority stake for €325 million in the Italian national carrier, including an option for the German airline to acquire the remaining shares at a later date. However, the two parties did not receive a fast-track status for the deal, indicating potential antitrust considerations and the possibility of concessions. The deal, aimed at strengthening Lufthansa's presence in southern Europe, has been under scrutiny for potential competition issues. ITA Airways, established as a successor to Alitalia, would transition from SkyTeam to Star Alliance as part of the agreement. German Chancellor Olaf Scholz and Italian Prime Minister Giorgia Meloni have voiced support for the deal. Nevertheless, the possibility of a challenging review process cannot be dismissed, following the return of Commissioner Margrethe Vestager to her role as the EU’s antitrust chief last month. 

The European Commission has a decision deadline for Phase 1 of the deal on 15 January.  The EU antitrust regulator may clear the deal after the completion of the preliminary review this week or initiate a four-month investigation if serious concerns about competition distortion arise, a likely scenario, especially in the absence of concessions.  

W/C Monday, 8 January – European Commission likely to announce decision on Renault’s and Volvo’s joint acquisition of FlexEco 

This week, the European Commission is likely to announce its decision on whether to allow a joint acquisition by Renault and Volvo of the French company FlexEco.  

On 6 December, the involved parties filed a notice of the proposed deal to the European Commission, pursuing a simplified procedure. The acquisition will take place through a newly created joint venture. Volvo is engaged in the global manufacturing and sale of various vehicles and engines, while Renault focuses on manufacturing and selling passenger cars, light commercial vehicles, and mobility services. FlexEco's business activities will include the development, production, and sale of light commercial vehicles and ancillary logistic services, initially in Europe and ultimately worldwide. 

The Commission’s potential green light this week could pave the way for the deal’s finalisation in the coming months. The financial terms of the agreement have not been disclosed. 

Thursday, 11 January – Margrethe Vestager to deliver a keynote speech at a tech antitrust conference in the US, her first since her return to the role of Competition Commissioner 

On Thursday, EU Competition Commissioner Margrethe Vestager will attend the Tech Antitrust Conference in Palo Alto, California, the first such conference since her return to the role of the EU’s antitrust chief. According to the event’s schedule, she will deliver a keynote speech, which could be an indication of the direction of competition policy in the final months of the Commission’s five-year term. Furthermore, she is expected to meet with the CEOs of Apple, Google, Nvidia, OpenAI, and Broadcom.  

After losing out to Nadia Calvino in the race to become President of the European Investment Bank (EIB), Vestager returned to the Commission in December and will have to deal with a shifting landscape in tech enforcement.  The recent direction of travel of competition policy seems to be favouring a more protectionist turn, allowing consolidation and further state aid in several sectors. Vestager’s tougher approach to competition has recently received a series of blows, following recent unfavourable court rulings (dismissing her findings against Amazon, Engie, Fiat, Starbucks) and the growing political influence of internal market commissioner Thierry Breton.   Notably, in an interview with Danish media last month, Vestager indicated that although she would like to remain as a Commissioner, she would prefer to do so in a different portfolio, thereby leaving the Competition portfolio to someone else.   

Hence, as the Digital Markets Act (DMA) enters into force early in 2024, it is expected that the EU Competition Commissioner will aim to seize it as an opportunity to reassert herself and shape her legacy in the coming months by focusing on cases involving big tech firms. However, she will realistically have a narrow time window of 4-5 months to do so.   

Thursday, 11 January – CJEU’s Advocate General to publish opinion on Google’s appeal against EU’s €2.42 billion antitrust fine 

On Thursday, the EU Court of Justice Advocate General Juliane Kokott will publish her opinion on Google's bid to overturn its €2.42 billion EU fine for its shopping platform practices, imposed by the European Commission in 2017. This appeal follows the EU's General Court in 2021 that upheld the Commission’s findings. 

More specifically, the EU imposed this penalty in June 2017, stating that Google had unfairly leveraged its dominant search engine to divert traffic to its Google Shopping service, which allows users to compare products and prices from online retailers, gaining an unfair advantage over smaller European competitors. Despite an initially unsuccessful launch in 2004 under the name Froogle, the Commission claimed that Google began systematically favouring its shopping service in search results from 2008 onward, ultimately achieving a dominant position in search results. Google had previously appealed to the EU’s General Court, which upheld the Commission’s fine in November 2021. The judges found no "objective justifications for Google's conduct" and concluded that the company had favoured its own Google Shopping service through more favourable display and positioning, while simultaneously demoting rivals through ranking algorithms. Subsequently, Google lodged an appeal in 2022 with the CJEU indicating its belief that certain aspects of the case require further legal clarification from the highest EU court while repeatedly denying favouring its own service. 

In a hearing before the CJEU last September, Google’s legal representatives argued that the company should be allowed to prioritise its own shopping comparison platform in its search results, even if it disadvantages rival platforms, pinpointing that the Commission had not adequately shown that Google's differential treatment of competitors constituted an abuse of market power. Google also challenged the lower court's judgment, claiming it made significant errors in redefining the antitrust findings related to Google's conduct. Although the Advocate General’s ruling is not legally binding the Court tends to follow their recommendations. A final ruling is expected in the coming months, following her recommendation. 

Thursday, 11 January – CJEU’s Advocate General to publish on joined cases involving Airbnb, Amazon and Google 

Also on Thursday, CJEU’s Advocate General Maciej Szpunar will release opinions on a series of joined cases involving Airbnb Ireland (C-662/22), Amazon Services Europe (C-667/22), Google Ireland (C-664/22), Eg Vacation Rentals Ireland (C-666/22) and Expedia (C-663/22), concerning the freedom to provide services. More specifically, these cases revolve around Italian regulations mandating online service providers to register and provide detailed economic and organisational information when operating in Italy. 

These  national regulatory measures are designed to align with EU’s Regulation 2019/1150, which seeks to enhance fairness and transparency for companies engaged in online intermediation services. However, the aforementioned companies are contesting these obligations in Italian courts, arguing that they are in conflict with certain principles of the EU law, with Expedia primarily contesting the obligation to provide specific information. Thursday’s non-binding legal opinions will respond to a request for a preliminary ruling from an Italian administrative tribunal court and are expected to shed more light on the compatibility of these Italian regulations with the EU law.