Class representative Liz Williams filed a claim against data broker Experian in February 2021. According to Williams, Experian holds information on about 46 million individuals in England and Wales. The claim aimed to obtain £750 damages for a total of £34 billion.
On 21 January 2021 MLex reported that British Airways, KLM and other airlines attended a hearing before the Court of Justice with two Dutch litigation vehicles, Stichting Cartel Compensation and Equilib Netherlands.[1] This case concerned the air cargo cartel for which the European Commission had imposed fines on the airlines in 2010. Now, in 2021, the question was whether the Amsterdam District Court could also adjudicate damage that, in brief, had arisen before the entry into force of Regulation (EC) No. 1/2003.[2] The English court had already ruled that such damage must be disregarded, but the Amsterdam District Court had held that it had to have independent jurisdiction to adjudicate matters from that period in the interest of promoting legal certainty. Advocate General Michal Bobek announced he would deliver his non-binding opinion on 13 April 2021. The court will then study that opinion and issue a ruling at a later date, MLex reported.
[1] A. Boyce, “Airlines, litigation vehicles scrap over Dutch court’s ‘competence’ for cartel claims at Top EU court’, 21 January 2021. It regards case number C-819/19 (Stichting Cartel compensation and Others).
[2] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.
On 15 February 2021, the CJEU published the request for a preliminary ruling from the court of Hannover, Germany, in one of the trucks cases against Daimler. The court sought clarification on whether the Commission’s decision must be interpreted as meaning that special-purpose/specialised vehicles, in particular refuse collection vehicles, are also covered by the findings of the Commission.[1]
[1] Case number C-588/20. Published in the Official Journal of the European Union on 15 February 2021.
Spokespersons for Amazon, Booking.com and Apple have expressed criticism on the draft Digital Markets Act which the European Commission revealed in December 2020. The draft prescribes that any platform qualifying as a “gatekeeper” has to comply with certain rules, without exceptions. According to Mlex, the spokespersons for the aforementioned platforms have expressed that the rules would be too rigid and complicated for trying to address specific problems, and “over-inclusive” as not all large platforms can be considered as gatekeepers.[1]
[1] Mlex, ‘Apple, Amazon, Booking.com take shots at Eu’s ‘gatekeeper’ regulation’, 9 February 2021.
In relation to the same trucks case, Spanish courts referred one of the cartel damages cases against DAF, Daimler, Iveco, MAN, Volvo-Renault and Scania to the CJEU on 11 March 2021.[1] This was the fourth case that was referred by Spanish courts; prior to this referral the courts of Barcelona, Madrid and Léon also referred questions to the CJEU for preliminary rulings.[2] On this occasion, the court of Barcelona sought clarification on the disclosure rules in the Damages Directive.[3] The claimants wanted to compel truck manufacturers to prepare and disclose data sets. They required a list of the models manufactured by DAF, classified according to the categories used by Spanish authorities, the transfer price for each model and the “total delivery costs”, which is a standard document produced by each manufacturer. The defendants argued that EU law did not require them to produce evidence for claimants. The Spanish courts wished to receive clarification on elements of the Damages Directive as the text appears to support the defence, but a narrow interpretation would make it more difficult for injured parties to claim damages.
[2] Case numbers C-882/19 (Barcelona), C-30/20 (Madrid) and C-267/20 (Léon).
[3] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements on the competition law provisions of the Member States and of the European Union.
As part of the measures to combat COVID-19, the Dutch government ordered the (temporary) closure of the retail sector to the public, with the exception of food stores and chemist’s stores. In response, INretail sought the re-opening of the non-essential retail sector in preliminary relief proceedings against the State. On 12 March 2021, the Preliminary Relief Judge denied all of INretail’s claims.[1] The Preliminary Relief Judge concurred with the State in finding that the need to enforce the closure of non-essential retail stores continued to exist in full, while, in addition, maintaining this measure was proportionate.
[1]The Hague District Court 12 March 2021, ECLI:NL:RBDHA:2021:2295.
After holding consultations, the Netherlands Authority for Consumers and Markets (“ACM“) – the Dutch competition authority – made the draft guideline it published last year on sustainability agreements more specific. The guideline provides clarity about the conditions under which companies are in fact allowed to collaborate when it comes to combating the climate crisis and achieving other sustainable goals. With that in mind, the guideline gives a broader interpretation of the European rules in some cases. The ACM believes it important that the European Commission and other countries adopt the same approach to enforcing the rules and that a European guideline be developed. In the meantime, companies need not worry about the outcome of that process, as the ACM has announced that while the discussion on the subject is still ongoing in Europe, it will refrain from imposing fines on companies that have followed the draft guideline in good faith.
On 14 January 2021, the Bundeskartellamt imposed fines on two manufacturers of manhole covers and gully tops and their representatives for agreements on prices and rebates and an agreement to carve up two major contracts between themselves. The companies concerned are MeierGuss Sales & Logistics GmbH & Co. KG and Hydrotex Technologies AG. The agreement existed at least from 16 May 2018 until 14 November 2018 and the fines imposed total around 6 million euros.[1]
[1] Press release Bundeskartellamt ‘Manufacturers of manhole covers and gully tops fined for price-fixing’, 14 January 2021.
On 19 January 2021, the 10th amendment to the German Competition Act entered into force. A key element of the amendment is the modernisation of the competition authorities’ control of abusive conduct – which is mainly focused on the need for fast and effective action in light of the rapid growth of large digital platforms. The Bundeskartellamt will under the new Act be able to take preventive measures and prohibit conduct such as self-preferencing of a group’s own services or impeding third companies from entering the market by processing data relevant for competition. The traditional abusive control provisions are also modernised and further specified by adding internet-specific criteria and making clear, for example, that access to data is relevant for competition and might lead to market power. Germany is the first to implement such measures; in the EU similar tools are still being discussed.
As to cartel prosecution, the amendment implements the ECN Plus Directive which is in place at EU level. In line with this Directive, companies and their employees will be required in the future to cooperate to a certain extent in establishing the facts of the case. The amendment also includes several new provisions regarding administrative fines and provisions on the leniency programme – which was not yet enshrined in law prior to this amendment.[1]
[1] Press release Bundeskartellamt, ‘Amendment of the German Act against Restraints of Competition’, 19 January 2021.
On 23 February 2021 the UK government published a policy paper elaborating, among other things, its view on the introduction of an opt-out regime for data protection class actions, implementing Article 80(2) GDPR.[1] The paper was published after a consultation was held in 2020. According to the paper, there is insufficient evidence of systematic failings in the current regime to warrant new opt-out proceedings.
When the UK government implemented the GDPR, it chose not to implement Article 80(2) GDPR. This article permits the Member State to make regulations allowing a non-profit organisation to represent data subjects without the data subject’s express consent.
The UK government concluded it is still not willing to implement Article 80(2) GDPR and introduce new legislation. Although the UK government accepts that some groups might find it difficult to complain to the Information Commissioner’s or bring legal proceedings of their own accord, there is no strong evidence to suggest that the Information Commissioner’s Office cannot or will not investigate serious, singular breaches of the legislation or systemic failings across whole sectors. The Information Commissioner’s Office is UK’s independent authority set up to uphold information rights in the public interest.
The UK government is also sympathetic to the view that new legislation could increase uncertainty for data controllers and is mindful of the potential impact of new legislation on the workload of the Information Commissioner’s Office and the courts. The UK government is not convinced that any perceived benefits of new legislation would outweigh these risks.
[1] Department for Digital, Culture, Media & Sport, Policy paper UK Government response to Call for Views and Evidence – Review of Representative Action Provisions, Section 189 Data Protection Act 2018, 23 February 2021.
