On 30 September 2021, the ACM established that three companies, Rotie B.V., UCO Kampen B.V. and Nieuwcom B.V., violated the cartel prohibition when purchasing used deep-frying oil. In total, a fine of nearly EUR 4 million was imposed on the companies involved, with the exception of UCO Kampen B.V. due to a bankruptcy.[1] The ACM established that Rotie B.V. had made cartel agreements with UCO Kampen B.V. and Nieuwcom B.V. The ACM had not found any cartel agreements between UCO Kampen B.V. and Nieuwcom B.V.[2]
Emails and WhatsApp messages have shown that representatives of the companies involved had been in contact with each other about the collection and purchase of used deep-frying oil from suppliers located throughout the Netherlands.[3] The purpose of said conduct was to keep the market calm, to divide suppliers and to bring down the purchase prices, allowing the companies to increase or retain their margins.[4] The ACM found that, in view of the market shares of the companies involved, it has been established that they did not have such a weak position that the conduct had a very minor impact on competition.[5] This was mainly to the detriment of restaurants and snack bars.[6]
[1] ACM Decision, ACM/UIT/562190, paras. 1-3.
[2] ACM Decision, ACM/UIT/562190, para. 4.
[3] ACM Decision, ACM/UIT/562190, para. 25.
[4] ACM Decision, ACM/UIT/562190, para. 26.
[5] ACM Decision, ACM/UIT/562190, para. 38.
[6] ACM Decision, ACM/UIT/562190, para. 4.
On 14 September 2021, the ACM imposed a fine of more than 39 million euros on Samsung Electronics Benelux B.V. for coordinating retail prices of all Samsung televisions with various retailers from January 2013 through December 2018.[1] These seven retailers jointly represented a large majority of Samsung television sets sold in the Netherlands.[2]
Using so-called spider software, Samsung was able to analyse price movements before contacting various retailers to urge them to adjust their retail prices for television models to a market price desired by Samsung. This is evidenced by both internal and external emails, and WhatsApp messages. Samsung stated that the same price had also been communicated to competing retailers.[3]
Providing indicative list prices or non-binding recommended retail prices is not prohibited. However, the ACM is of the opinion that Samsung went beyond what is permissible, because it systematically and directly intervened in the competition between the retailers.[4] This action by Samsung created a climate in which retailers were discouraged from taking the initiative to reduce prices, which is to the detriment of consumers. The agreements existed for more than six years.
[1] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 1.
[2] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 9.
[3] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, para. 3.
[4] Summary of decision concerning Samsung Electronics Benelux, ACM, case number: ACM:20/040569, paras. 5-8.
The Spanish District Court referred questions to the CJEU, which the CJEU published on 20 September 2021. The questions pertain to the question of whether the rules for allocating the costs of the proceedings can constitute an infringement of the right of cartel victims to compensation. In addition, the Spanish District Court referred questions about when courts may estimate the amount of the damage, based on EU rules.[1]
[1] Official Journal of the European Union 20 September 2021, Request for a preliminary ruling from the Juzgado de lo Mercantil n. 3 de Valencia (Spain) lodged on 19 May 2021 — Tráficos Manuel Ferrer, S.L. and Other v Daimler AG, Case C-312/21.
On 15 July 2021, the Court of Justice of the European Union (the “Court“) rendered a judgment that clarifies which national courts within an EU Member State have jurisdiction over actions for cartel damages.[1] Questions about the interpretation of Article 7(2) of the Recast Brussels Regulation[2] arose in Spanish proceedings between RHS, an undertaking domiciled in Spain, on the one part, and the Volvo Group on the other, concerning payment of damages for its involvement in the truck cartel. Article 7(2) of the Recast Brussels Regulation confers jurisdiction on the court for the place where the damage occurred.
RHS had purchased trucks in Cordoba, Spain, and also has its registered office there but it brought its action before the court of Madrid. The Volvo Group consequently contended that the Spanish courts did not have international jurisdiction since the cartel was concluded in other Member States of the EU and the ‘place where the harmful event occurred or may occur’ referred to in Article 7(2) is the place where the truck cartel was concluded, and not where the applicant in the main proceedings is domiciled.
The Spanish court therefore asked the CJEU, in essence, whether Article 7(2) must be interpreted as meaning that this provision constitutes a rule which strictly concerns international jurisdiction or whether it is a dual or combined rule which also operates as a rule on local territorial jurisdiction, without any need to refer to domestic regulation.
Briefly put, the Court held:
- Article 7(2) directly and immediately confers both international and territorial jurisdiction on the courts for the place where the damage occurred and therefore there is in principle no need to refer to national rules determining the jurisdiction of courts;
- However, there is one exception: the delimitation of the court’s jurisdiction within which the place where the damage occurred is situated, is as a rule a matter for the organisational competence of the Member State to which that court belongs, and jurisdiction may be centralised before a single specialised court. In other words, EU Member States are allowed to designate centralised courts to deal with cartel damages cases;
- In the absence of such a specialised court, there are two options: (1) where the injured party purchased goods affected by the cartel exclusively within one EU Member State within the affected market, the courts of that Member State have jurisdiction, or (2) where the injured party has made purchases in several places, each undertaking that has been harmed may bring a follow-on action before the court where it has its registered office.
[1] Judgment of the Court of 15 July 2021 in Case C-30/20, ECLI:EU:C:2021:604.
[2] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.
On 29 September 2021, the Court of Appeal ruled on the claim lodged by 28 thousand individuals from the Bonga Community against Shell.[1] The primary issue in this appeal was whether the claims for remediation relief against Shell of the 28 thousand individuals from the Bonga Community could be pursued by two individuals from this Community by way of representative action. The Court of Appeal rejected the appeal and ruled that these claims could not be lodged in the form of a representative action. In its judgment, the Court of Appeal analysed the circumstances under which a case could be instituted as an action by representatives of persons with the same interest, along with the specific requirements and related limitations. The Court of Appeal was of the opinion that this was a threshold issue and that in this case, the claim could not constitute a representative action. Lord Justice Coulson stipulated that the fact that the claimants have the same interests is a basic ingredient and that this was entirely missing in these circumstances. In particular, the requirement of having the same interest was not satisfied with regard to the scope of the claim. Each individual claim would therefore be “tried to a conclusion”, which would lead to a patchwork of success – which, in his opinion, is not a representative action. For the Bonga Community, this means that each of its members would need to prove individually that he, she or it had individually suffered loss and damage. As a precedent, certainly in cases in which there is a need for an individual analysis of the causation and the loss and damage, claimants may experience difficulties in complying with the “same interest” test.
On 30 July 2021, Prysmian, producer of underground and submarine cables for the transmission and distribution of electricity, reached a confidential settlement agreement with Scottish and Southern Energy and other energy companies in proceedings concerning Prysmian’s involvement in the power cables cartel.[1] On the side of Prysmian, the entities involved in the settlement agreement are Prysmian Cable & Systems Limited, Prysmian Cavi E Sistemi SRL, Prysmian S.P.A., Prysmian Construction Company Limited and Prysmian Cables (2000) Limited, and on the other side SSE PLC, Scottish and Southern Energy Power Distribution Limited, SSE Services PLC, Southern Electric Power Distribution PLC, Scottish Hydro Electric Power Distribution PLC, Scottish Hydro Electric Transmission PLC.[2]
[1] European Commission decision of 2 April 2014, Case AT.39610 (Power cables).
[2] CAT Consent order of 20 August 2021, Case Nos 1353/5/7/20 (T).
On 26 July 2021, the CAT ruled that cartelist NTN may not appeal the Tribunal’s decision of 18 June 2021[1] in which the Tribunal disregarded some of NTN’s defences regarding mitigating circumstances for the claimants by reducing other costs.[2] NTN was fined by the European Commission (EC) in 2014 for its participation in the ball bearing cartel.[3] Ball bearings are used to attach the wheel axle to a vehicle or to attach the wheel to the axle. In response to the EC’s fining decision, Fiat Chrysler Automotives (FCA) initiated proceedings in which it wants to claim its loss from NTN. The CAT ruled that the appeal that NTN wanted to lodge against the decision of 18 June 2021 does not have a “real prospect of success” and is therefore not allowed.
[1] CAT 18 June 2021, [2021] CAT 14, Case No 1357/4/7/20 (T).
[2] CAT 26 July 2021, [2021] CAT 25, Case No 1357/5/7/20 (T).
[3] European Commission decision of 19 March 2014, Case Comp/39922 (Bearings).
On 15 July 2021, the Japanese bank Mitsubishi UFJ Financial Group (formerly Bank of Tokyo-Mitsubishi) told a UK judge during the last day of a five-day hearing at the UK’s specialised competition court that the allegation of “tacit coordination” was erroneous and detrimental to the mass antitrust claim lodged by former inquiry group chairman of the Competition and Markets Authority Phillip Evans.[1]
MUFG was fined nearly 70 million euros ($83 million) by the European Commission in May 2019 for being involved in one of two cartels in the spot forex market, which are agreements to exchange a specific amount of one currency against another.
Evans is one of two class representatives seeking, on behalf of thousands of investment firms, to sue MUFG and others for billions of pounds in damages over the cartel activity. He argued that the sharing of information within the cartel facilitated tacit, or inexplicit, coordination between traders to widen “bid-ask” spreads. Further, he said that due to their market power, the cartelist banks had the ability and incentive to “engage” in tacit coordination on spreads.
MUFG told the UK judge that this was a flawed allegation and that the tacit coordination is just a theory. It is unfeasible for a few participating traders to tacitly control the market and cause this alleged widespread coordination of spreads. Moreover, the banks were not in a position to engage in tacit coordination as their market shares fluctuated over time.
It was the Commission’s investigation that revealed that some individual traders in charge of forex spot trading, on behalf of banks, exchanged sensitive information and trading plans, and occasionally coordinated their trading strategies.[2] It said that activity, resulting from a “tacit understanding” between traders, enabled informed market decisions.
MUFG said about this investigation that they contest the notion that you can go from incidental spread exchanged between a handful of traders to tacit coordination of all spreads by those traders, and then to tacit coordination of all spreads by those banks.
[1] According to MLex, “Banks didn’t and couldn’t use ‘tacit coordination’ to rig forex prices, MUFG tells UK judge,” 15 July 2021.
[2] European Commission, “Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel,” 16 March 2019, https://ec.europa.eu/commission/presscorner/detail/it/IP_19_2568.
On 13 July 2021, another lawsuit was filed in connection with the truck cartel[1] at a London court. UK retailer William Morrison Supermarkets is claiming damages from truck manufacturers DAF Trucks and Volvo for their involvement in the cartel together with other truck manufacturers that received a record fine from the European Commission in 2017.[2]
[1] European Commission decision of 19 July 2016, case AT.39824 (Trucks).
[2] According to MLex, ‘Retail group Morrisons sues Volvo, DAF in UK over trucks cartel’, 13 July 2021.
In July 2021, the Competition Appeal Tribunal (CAT) examined the battle between two competing mass claim representatives for permission to conduct an action for damages during a five-day hearing. These are proceedings against various banks, including JPMorgan Chase, Barclays and UBS because of their role in the spot forex trading cartel[1]. This requires the CAT to pioneer in the context of the UK class action regime because it is the first time that the CAT is asked to render a decision on which of the two potential mass claim representatives may conduct the proceedings. Both aim to apply an opt-out regime in which injured parties automatically participate, unless they indicate that they do not wish to do so. It is therefore impossible for both claims to result in actual proceedings and the CAT will therefore have to choose which of the two will be allowed to continue.
The two potential representatives are Michael O’Higgins, former head of the UK pension regulator, and Phillip Evans, former chairman of the Competition and Markets Authority (CMA) inquiry group.[2] Both want to represent thousands of institutional investors and act on their behalf in order to recover the damage they have suffered from the banks.
During the hearing, the suitability of both claims was discussed, including in the areas of litigation planning, funding, and definitions of the group to be represented. O’Higgins’ group managed to obtain more financing than Evans’ group, but Evans argued that this would not necessarily mean that O’Higgins’ claim for damages is more suitable than his and that his financing would in any event be sufficient.[3] The banks defended their position, inter alia, by asserting that, in so far as one of the proceedings were even permitted, only an opt-in regime would be appropriate in this case because of the nature of the group and the value of the possible claim. According to the banks, the opt-out regime as introduced in the UK legal system was not intended for large and well-to-do companies like the injured parties in this case.[4] As far as possible representatives are concerned, an opt-in regime is in fact not suitable because it entails practical difficulties such as having to approach and contact potential injured parties, which will take a lot of time.
The group of injured parties to be represented will include pension funds, asset managers and hedge funds, and the claim for damages to be submitted is estimated at around seven billion euros.
[1] European Commission press release, ‘Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel’, 16 May 2019.
[2] Case references are 1329/7/7/19 Michael O’Higgins FX Class Representative Limited v Barclays Bank PLC and Others and 1336/7/7/19 Mr Phillip Evans v Barclays Bank PLC and Others.
[3] According to MLex, ‘Rival claimants for forex-rigging damages lay out core arguments for trial suitability’, 12 July 2021.
[4] According to MLex, ‘UBS insists forex-cartel mass damages claims only viable as ‘opt in’ actions, 14 July 2021.
