On 22 December 2021, the Bundeskartellamt published its review of 2021, which explains the actions it took in that year.[1] First, it initiated new proceedings against Amazon, Apple, Google and Meta (formerly Facebook). This was partly because the Bundeskartellamt had improved its abuse control in early 2021, enabling it to proceed more quickly and effectively against anti-competitive practices by large digital corporations.
Second, it imposed fines of approximately EUR 105 million for illegal cartel agreements. The fines were imposed on special steel producers and steel forging companies and for vertical price-fixing agreements for musical instruments, school bags and consumer electronics. Nine companies informed the Authority about infringements in their sector using the Authority’s leniency programme. Further tip-offs were received from other sources.
Third, although the scope of application of merger control was limited by a legislative amendment in early 2021, the Bundeskartellamt examined approximately 1,000 corporate mergers. Of these cartels, 14 were closely examined in the so-called second phase. Three of these were cleared without obligations. One merger was cleared with obligations, which meant that EDEKA was only allowed to take over some of the Real stores.
Finally, the Competition Register for Public Procurement was launched at the Bundeskartellamt in 2021. The Competition Register provides over 30,000 public contracting authorities in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.
[1]Press release of Bundeskartellamt of 22 December 2021, ‘Bundeskartellamt – Review of 2021′.
The Bundeskartellamt has imposed a fine totalling approximately 7 million euros on Bose GmbH, which is based in Friedrichsdorf, on account of resale price maintenance.[1] Bose’s activities in this area mainly focus on the distribution of audio products, especially speakers and headphones. The proceedings were initiated in the context of a request for official assistance from the Austrian competition authority.
Bose’s employees agreed on concerted measures for setting sales prices with the authorised dealers involved. These measures generally pertained to an increase in sales prices, which were also specifically set in some cases. For example, the company intervened on several occasions in which the dealers had deviated from the recommended resale price, prompting the dealers to adjust their conduct accordingly in a number of cases.
[1] Press release of the Bundeskartellamt of 2 December 2021, ‘Bundeskartellamt imposes fine on audio equipment manufacturer Bose’.
ACM declares the manufacturers’ objections to the fines for distorting competition unfounded.
In a decision of 25 November 2021, ACM declared the objections of four cigarette manufacturers against a fine imposed by ACM unfounded.[1] ACM fined cigarette manufacturers British American Tobacco International (Holdings) B.V. (‘BAT’), JT International Company Netherlands B.V. (‘JTI’), Philip Morris Benelux BV and Philip Morris Investments B.V. (‘PMI’) and Van Nelle Tabak Nederland B.V. (with trade names including Imperial Tobacco Nederland, ‘ITN’) in 2020 because they had spent years exchanging information about future prices of packs of cigarettes through wholesalers in breach of Article 101 TFEU.
The manufacturers’ grounds for objection related to the interpretation of the market conditions and the facts, the legal qualification of the conduct, the manner in which the proceedings were organised and the level of the fines. The ACM denied all the objections.
[1] Decision of ACM regarding decision of 27 May 2020 with reference ACM/UIT/534410, case number ACM/20/040888, ACM/20/040894, ACM/20/040913, ACM/20/041113.
On 1 December 2021, the Netherlands Authority for Consumers and Markets (“ACM”) published a press release stating that it was carrying out an investigation into a possible cartel in the food processing sector.[1] The competing companies concerned are suspected of having made secret product-sharing agreements with each other. Product sharing involves mutual agreements about which company will manufacture which product, whereas each company should make such decisions independently. Furthermore, the companies are also suspected of making agreements regarding the purchase price of the agricultural products they process, and finally of making agreements regarding the selling price of these products. Prompted by these suspicions, ACM recently carried out raids at various companies in the Netherlands and also at a company in the food processing sector outside of the Netherlands. In the next few months, ACM will investigate whether competition rules have indeed been violated.
[1] ACM press release of 1 December 2021, ‘ACM investigates potential cartel in the food processing sector’.
On 2 December 2021, Advocate General Richard de la Tour delivered his opinion on the CJEU case Meta Platforms Ireland v BVV (ECLI:EU:C:2021:979). The case involves the interpretation of Article 80(2) of the General Data Protection Regulation (“GDPR”). The question before the CJEU is whether consumer interest groups can bring a collective action for breach of the GDPR on behalf of data subjects, regardless of whether an individual data subject’s concrete rights have been violated and without a mandate from the data subject.
De la Tour is of the opinion that not only entities whose sole purpose is the protection of personal data can bring an action. Pursuing an interest related to the protection of personal data, as a consumer protection association does, is sufficient (par. 61). It is furthermore not required that an entity should identify in advance one or more persons affected by the processing. It is sufficient that the processing entailed an infringement of the GDPR (par. 62-63). In interpreting Article 80(2) GDPR, the main focus is on the effectiveness of the GDPR and the protection of the rights of data subjects (par. 64, 67, 73-78, 81 & 83-84). According to De la Tour, collective actions are particularly suited to the objective of establishing a high level of protection of personal data (par. 76-78). Among other things, the provision therefore allows Member States a great deal of leeway to implement the article in a way that allows entities to bring collective actions without a mandate from the data subjects (par. 69-75; also see par. 54 on the optional nature of the provision).
The CJEU is expected to deliver judgment on 28 April 2022.
On 11 November 2021, the Court of Justice ruled in the air cargo case between the Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands B.V. v. British Airways, KLM, Lufthansa and a group of other airlines.[1] It answered the questions referred to it for a preliminary ruling by the District Court of Amsterdam, the Netherlands, as to whether national courts could also rule on claims relating to flights dating from before 1 May 2004 between the EU and outside countries; flights dating from before 19 May 2005 between Iceland, Lichtenstein, Norway and outside countries and flights dating from before 1 June 2002 between the EU and Switzerland. The Court of Justice answered in the affirmative. National courts may also rule on older claims.
[1] CJEU 11 November 2021, case C-819/19 (Stichting Cartel Compensation and Equilib/KLM and others).
On 28 October 2021, Advocate General Rantos delivered an opinion regarding the same truck cartel.[1] In a case between a Spanish company referred to by the letters RM v. Volvo and DAF Trucks, the Court of Appeal of Léon, Spain had asked the Court of Justice for a ruling on the temporal scope of the Antitrust Damages Directive.[2] Relevant in that context is that the Antitrust Damages Directive distinguishes between substantive provisions that have not been declared retroactively applicable and procedural provisions that are applicable in cases that predate the Directive’s entry into force. Two things were at issue.
In Spain, there is a limitation period of one year for non-contractual liability, whereas Article 10(3) of the 2014 European Antitrust Damages Directive specifies a five-year limitation period for bringing actions for cartel damages. The question is which limitation period applies here. The Advocate General concluded that the five-year limitation period is a substantive provision and does not therefore apply to cases where the facts and fines predate the implementation of the Directive.
Another point of dispute was whether the presumption that a cartel leads to damage in Article 17(2) of the Antitrust Damages Directive applies here. The Advocate General held that this was a procedural provision and that it is therefore also applicable in cases where the facts predate the Directive.
[1] Opinion of Advocate General M. Athanasios Rantos, case C-267/20, 28 October 2021. See also Court of Justice of the European Union Press Release No 193/21: “Truck cartel in Spain: Advocate General Rantos clarifies the temporal scope of the directive on the compensation of victims of anti-competitive practices”, 28 October 2021.
[2] 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 of the competition law provisions of the Member States and of the European Union.
On 6 October 2021, the Court of Justice of the European Union ruled in the case of Sumal S.L. v Mercedes Benz Trucks Espana S.L., one of the cases it is handling in response to the truck cartel. [1] In 2016, the European Commission imposed a fine on the defendant’s German parent company, Daimler AG, for infringement of competition law in the truck cartel. [2] However, the Spanish company Sumal had not initiated cartel damages proceedings against Daimler AG but against its Spanish subsidiary. The claims were denied at first instance because this Spanish company was not the addressee of the Commission decision. The Barcelona Court of Appeal however had its doubts about this opinion and referred the case to the Court of Justice of the European Union.
The Court of Justice of the European Union arrived at a different decision. It held that a subsidiary could also be held liable if it formed an “economic unit” with the addressee parent company. The claimant therefore has to prove “the economic, organisational and legal links that unite the two legal entities” and “the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible.”
On 9 December 2021, an appeal court in Stuttgart handed down a judgment in a truck cartel follow-on action in favour of truck manufacturer Daimler.[1] In 2018, the lower Stuttgart court ordered Daimler to pay compensation to two German construction firms on account of its involvement in the truck cartel.[2] The firms were seeking damages of around €300,000 as compensation for purchased trucks and overpriced liability insurance premiums. After several rounds of appeal before the Stuttgart appeal court (which upheld the judgment at first instance) and the Federal Court of justice (which overturned the appeal court ruling),[3] the case was sent back for reconsideration by the Stuttgart appeal court. The Federal Court of Justice said the appeal court had erred in finding that the claimant construction firms suffered damage because of the cartel. In reaction to the judgment, Daimler declared the following in a statement: “We are still convinced that our customers haven’t suffered any damage. The EU Commission didn’t make any determination in its decision on the question of damage to customers. In addition, there are already some final judgments dismissing actions.”[4]
[1] Stuttgart higher regional court, 2 U 101/18.
[2] Stuttgart regional court, 45 O 1/17.
[3] Federal Court of Justice, KZR 35/19.
[4] According to Mlex, ‘Daimler overturns truck-cartel claims ruling in Stuttgart appeal court’, 10 December 2021.
In a 27 September 2021 decision published in Q4 in a follow-on action in the context of the truck cartel, the Dortmund District Court assumed that the cartel caused harm. The District Court held that the European Commission’s fining decision contains significant indications demonstrative of the cartel’s price effect. The District Court referred to the cartel’s length, broad market coverage (in this case, more than 90% in the EU and nearly 100% of the German market), lack of product substitutability and degree of organisation, among other things. Referring to established economic theories and empirical research, the District Court held that these factors are core indicators generally indicative of a cartel-related price increase (the empirical principle).
The District Court accorded particular weight to the empirical principle due to the contradictory nature of the expert evidence that the parties had submitted. Nor do the submitted expert statements cancel each other out, according to the District Court. The District Court nevertheless held that the indications led, in any event, to the assumption of a certain extent of damage.
The question of whether it is possible to determine the level of damages and/or conduct an expert investigation to that end will be dealt with at a subsequent stage before a decision is rendered in the present case.
