On 20 January, the EC has fined various big players in the EU gaming industry: Valve, owner of online PC gaming platform “Stream” and the five publishers Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax, for the amount of EUR 7.8 million for violating EU competition rules. Stream is one of the world’s largest online PC video gaming platforms and offers more than 35,000 games worldwide. The companies have been found guilty of “geo-blocking” practices by restricting cross-border sales of certain PC video games on the basis of the geographical location of users within the EEA.[1]
[1] European Commission Press Release of 20 January 2021, ‘Commission fines Valve and five publishers of PC video games € 7.8 million for “geo-blocking” practices’.
On 25 January 2021, the European Commission published a non-confidential version of the European Commission’s decision of 14 July 2020 in the ethylene cartel in which the Commission fined Orbia, Clariant and Calenese for implementing a lower purchase price of ethylene to the detriment of sellers.[1]
On 5 February 2021, Teva Pharmaceutical Industries and Cephalon brought an action before the CJEU against the European Commission to appeal the fine they received.[1] The European Commission fined the pharmaceuticals on 26 November 2020 for establishing in a patent dispute settlement agreement that Cephalon would not enter the market with a general version of the sleeping disorder medicine modafinil.[2] According to the Commission, this was a forbidden pay-for-delay agreement, a restriction of competition by object. The pharmaceutical companies seek annulment or reduction of the imposed fine.
[1] Published in the Official Journal on 22 March 2021, OJ 22 March 2021, C 98/34. Case number T-74/21.
On 10 February 2021, the European Commission adopted a decision against Aspen Pharmacare (“Aspen“).[1] In its decision, the European Commission found that Aspen started in 2012 to progressively increase, often by several hundred percent, its prices for 6 medicines which are essential to treat certain serious forms of blood cancer. After four years of investigation, the Commission came to the conclusion that Aspen was leading an excessive pricing policy for these medicines which was in breach of EU competition rules. The Commission accepted commitments by Aspen to reduce significantly the prices of these medicines for the future and reimburse the excessive prices it had charged between October 2019 and February 2021. The European Commission highlighted in its press release that all national health funds and insurance companies injured by this excessive pricing policy may obtain compensation for their damage for the period between 2012 and 2019.[2]
[1] Case AT.40394 – Aspen, Commitments to the European Commission.
[2] Commission’s press release: “Antitrust: Commission accepts commitments by Aspen to reduce prices for six off-patent cancer medicines by 73% addressing excessive pricing concerns”, 10 February 2021.
The UK CMA has appointed a new Senior Director of Cartels, Juliette Enser. She will succeed Howard Cartlidge who is retiring. Ms Enser has worked at the CMA and its predecessor, the Office of Fair Trading, since 2010, having held the position of Director of Cartel Enforcement since 2014. The Senior Director of Cartels has overall responsibility for the CMA’s cartel investigations and seeks to encourage businesses to report illegal activity to the CMA.[1]
[1] Press release CMA, ‘New CMA Senior Director of Cartels appointed’, 8 February 2021.
The UK CMA has released a policy paper in February which explains the refreshed Digital Markets Strategy of the CMA. The ambition of the strategy is in line with the trend amongst competition authorities to address the fast changes taking place as a result of the growth of digital markets. The overarching strategy of the CMA is to build and establish a new Digital Markets Unit within the CMA as a “centre of expertise for digital markets, with the capability to understand the business models of digital firms, including the role of data and the incentives driving how these firms operate”, according to the paper. The intention of the unit is also that it will support the government in developing the regulatory framework for digital markets and to make sure that those are in line with international regulation on this topic.[1]
[1] CMA, The CMA’s Digital Markets Strategy: February 2021 refresh.
A study on responsible private funding of litigation of the European Added Value Unit of the European Parliament was completed in February 2021.[1] The study discusses whether and why the European Union should act in the field of third-party litigation funding, and gives a comprehensive overview of third-party litigation funding in the European Union, by describing the main players on the European third-party litigation funding market and the EU legal framework.
[1] Responsible private funding of litigation European added value assessment. https://www.europarl.europa.eu/RegData/etudes/STUD/2021/662612/EPRS_STU(2021)662612_EN.pdf
The Bundeskartellamt has imposed fines on steel forging companies CDP Bharat Forge GmbH (now: Bharat Forge Global Holding GmbH), Bharat Forge CDP GmbH and Johann Hay GmbH & Co KG Automobiltechnik (now: Musashi Bockenau GmbH & Co KG). The Bundeskartellamt found after investigations that the companies exchanged competition-sensitive information about costs, their pricing strategies and concrete negotiations with suppliers and customers. The fines imposed total around 35 million euros.[1]
[1] Press release Bundeskartellamt, ‘Bundeskartellamt imposes fines on steel forging companies’, 4 February 2021.
On 25 November 2020, the Amsterdam District Court rendered an interlocutory judgment in a case between four government bodies in the Gulf States of Bahrain, Saudi Arabia, Kuwait and Oman [1] on the one hand and 15 legal entities involved in groups of Prysmian, [2] ABB, [3] Pirelli,[4] Goldman Sachs [5] and Nexans [6] on the other. [7]
The backdrop is the power cable cartel whose existence was established by the European Commission in 2014. [8] The European Commission established that European, Japanese and South Korean manufacturers of underground and submarine power cables had divided power cable projects between themselves between 18 February 1999 and 29 January 2009. The defendants are (indirectly) connected to the addressees of the Commission decision.
The claimants of the Gulf States are seeking a declaratory judgment that the defendants acted unlawfully because they participated in the cartel, or that the knowledge of the parent companies addressed must be imputed to them. In separate ancillary actions, the defendants are seeking that the District Court decline jurisdiction.
The District Court partially concurred with the defendants in this respect. It held that, although it had jurisdiction to rule with regard to the Dutch defendants, this was not the case for the foreign defendants. Nor could the Dutch defendants serve as anchor defendants. The first requirement of a sufficiently close connection between the claims had not been satisfied. The mere fact that the Dutch defendants are (indirectly) connected with the addressees of the decision did not mean that they were also involved in the infringement under competition law or that parent companies’ liability could be imputed to them. The District Court therefore deemed itself to lack jurisdiction with regard to the foreign defendants.
- Electricity & Water Authority of the government of Bahrain (Bahrain), GCC Interconnection Authority (Saudi Arabia), Kuwait Ministry of Electricity and Water (Kuwait) and Oman Electricity Transmission Company SAOC (Oman).[↩]
- The defendants are Prysmian Netherlands B.V., Draka Holding B.V., and Prysmian Cavi e Sistemi S.R.L[↩]
- The defendants are ABB B.V., ABB Holdings B.V., ABB AB, and ABB Ltd.[↩]
- The defendant is Pirelli & C S.p.A.[↩]
- The defendant is The Goldman Sachs Group, Inc.[↩]
- The defendants are Nexans Nederland B.V., Nexans Cabling Solutions B.V., Nexans Participations S.A., Nexans S>A. and Nexans Franse S.A.S.[↩]
- Amsterdam District Court 25 November 2020, ECLI:NL:RBAMS:2020:5882.[↩]
- Decision of the European Commission of 2 April 2014 in case AT.39610 (‘Power Cables’).[↩]
On 24, 25 and 26 November 2020, the District Court held a (unique) three-day hearing in a case between various claims vehicles on the one hand and truck manufacturers DAF, MAN, Iveco, Volvo-Renault, Daimler and Scania on the other. The District Court dealt with three subjects, one per day: the scope of the European Commission’s decision, the trucks manufacturers’ defence to the effect that no damage could have been suffered, and the claim for the surrender of documents. In addition, discussion took place on the value that the District Court is entitled to attach to procedural documents and judgments in other (foreign) proceedings. The claimants relied, for instance, on a procedural document from Ryder, a claimant in proceedings in the UK, in which information from the European Commission’s file had been incorporated. The claimants, also relied on a decision by the UK Competition Appeal Tribunal in which the facts laid down in the decision had been adopted despite objections from the truck manufacturers. On 15 May 2021, the District Court rendered judgment on these subjects. We will discuss them in Q(2021-2).
