On 18 January 2022 the UK economic regulator for the payment systems industry, the Payment Systems Regulator Limited (PSR), fined five companies more than 33 million pounds for cartel behaviour in the prepaid cards market.[1] The companies fined are Mastercard Inc., Allpay Ltd, Advanced Payment Solutions Ltd, Prepaid Financial Services Ltd and Sulion. The larger part of the fine was imposed on Mastercard Inc. The PSR concluded that the five parties infringed competition law by agreeing to not compete or poach each other’s customers in the prepaid cards market in Great Britain. This meant less competition and less choice for local authorities that used the prepaid cards for distributing welfare payments to vulnerable customers.
On 23 March 2022, the Bundeskartellamt stated that they would initiate cartel administrative proceedings against medical aids associations for coordinated price increases to the detriment of health insurance companies.[1] The associations organised themselves under the “ARGE” umbrella and represent in particular health care supply stores and orthopaedic workshops. According to the Bundeskartellamt, they demanded coordinated price increases for existing supply contracts in the rehabilitation and care sectors, threatened to end certain contracts with health insurance companies and in some cases actually ended them. Because ARGE represents the lion’s share of all suppliers of medical aids for rehabilitation and care on which patients in Germany rely, the proceedings of the Bundeskartellamt are investigating not only potential infringement of the ban on anti-competitive agreements, but also whether there has been an abuse of a dominant position.
On 10 February 2022, civil-engineering companies Maurer SE and Mageba GmbH were fined a total of around 7.3 million euros by the Bundeskartellamt for cartel activity that lasted for several years.[1] The two companies are Germany’s sole manufacturers of modular expansion joints for road bridges. The companies were found to have agreed to fix their market shares in the form of quotas to divide up the market between them. According to the Bundeskartellamt, they also agreed on a uniform price-calculation formula. Bundeskartellamt chief Andreas Mundt stated that the cartel affected an important area of public infrastructure and ultimately investments by federal, state and local government.
In January 2022 Germany’s antitrust watchdog, the Bundeskartellamt, conducted unannounced dawn raids at the German premises of cable manufacturers. On 18 January 2022, cable manufacturers Leoni AG and the Italian Prysmian S.p.A. stated they were visited by the Bundeskartellamt.[1] Two days later, French cable maker Nexans S.A. said it was also the target of antitrust inspections by the regulator.[2] The searches are said to be part of a new investigation into cable manufacturers that allegedly coordinated the calculation of industry-standard metal surcharges in Germany. The cable manufacturers declared their willingness to cooperate with the Bundeskartellamt. Companies purchasing cables from the undertakings concerned in the investigation might have been harmed by the alleged collusion between manufacturers.
On 5 January 2022, the Bundeskartellamt delivered its decision that Alphabet/Google is subject to extensive abuse control by the Bundeskartellamt under the newly introduced Article 19a of the German Competition Act (GWB). This provision grants more powers to the competition authority to deal with large digital platforms.
The Bundeskartellamt has decided that Alphabet/Google is of “paramount significance for competition across markets” within the meaning of Article 19a GWB. Based on this decision, the Bundeskartellamt can now prohibit Alphabet/Google from certain specified anti-competitive practices as set out in the new provision. Google has announced it will not appeal the decision or deny its status under Article 19a, though it has also said that it does not necessarily agree with all the facts on which the Bundeskartellamt based its decision.[1]
In Q1 of 2022, the ACM ensured whether Apple amended its policy for dating apps in accordance with the conditions imposed by the ACM on Apple in order to prevent possible abuse of a dominant position. In December 2021, the ACM demanded that within two months, Apple amend certain conditions, deemed unreasonable by the ACM, applicable to access to dating app providers to the Dutch App Store.[1] In addition, Apple had to ensure that dating app providers would be given the opportunity to refer, in their app, to payment options outside the app.
It became clear in January 2022 that Apple had still not introduced this latter possibility, and it therefore incurred the first penalty of EUR 5 million.[2] Next, in February 2022, Apple proposed to the ACM that it would amend the policy in such a way that dating app providers would have to make an entirely new app to use an alternative payment system. The ACM ruled that it would be unreasonable to ask the dating app providers to modify their existing apps, and did not approve the proposal.[3]
On 27 March, Apple subsequently amended the proposal, which the ACM will now assess and, if approved, will submit to market parties.[4] However, Apple has meanwhile forfeited the maximum penalty of 50 million euros.
- Press release ACM of 24 December 2021, ‘ACM requires that Apple amend unreasonable App Store conditions’.[↩]
- Press release ACM of 24 January 2022, ‘Apple does not meet the requirements of the ACM’.[↩]
- Press release ACM or 14 February 2022, ‘ACM: Creation of new app is unnecessary and unreasonable condition for Apple to impose on dating app providers’.[↩]
- Press release ACM or 28 March 2022, ‘ACM assesses Apple’s modified proposal on terms and conditions for dating apps’.[↩]
On 24 February 2022, Advocate General Medina gave an opinion in a case of the German region Landkreis Northeim versus truck manufacturers Daimler, Iveco and MAN with regard to the truck cartel.[1]In German proceedings, the German region also sought compensation of damage for two waste vehicles, while the truck manufacturers asserted that these were not covered by the decision of the European Commission of 19 July 2016[2] and it has therefore not been established for these trucks that cartel arrangements were made for this. The question currently before the Court of Justice for a preliminary ruling is whether, in addition to ‘ordinary’ trucks, also special purpose vehicles, such as waste vehicles and fire department vehicles, are covered by the decision. The Advocate General concludes that all specialised vehicles except vehicles for military purposes are covered by the decision of the European Commission. If the Court of Justice follows this opinion, damages can also be claimed for these special purpose trucks.
On 5 January 2022, for the first time in French history, the Paris Court ruled against a professional entity in a class action. The grounds of the class action were based on the Public Health Code. The Association d’aide aux parents d’enfants souffrant du syndrome de l’anticonvulsivant (“APESAC”) is the association to act as plaintiff in this class action. This association represented families in which the mother took medication (including Depakine and its derivatives) for epilepsy during her pregnancy. It was later discovered that the use of this medication during pregnancy led to malformations and disorders of children exposed to the medication. The APESAC filed the class action against Sanofi-Aventis France (the manufacturer), which was followed by Sanofi-Aventis France summoning the ONIAM (the National Office for Compensation for Medical Accidents) and its insurer Allianz.
The French judges drew a few important conclusions: first, Sanofi-Aventis France had a duty of care towards children exposed to the medication. According to the Paris Court, Sanofi failed to comply with its duty of care, and therefore its duty of information. The fact that the medication works very well for the treatment of epilepsy does not detract from this. Already in 1984, Sanofi should have requested the national drug safety agency for a modification of the package insert for the medication Depakine (and its derivatives). This would have ensured that health professionals had the necessary information, which could have prevented pregnant women taking the medication. Until 2006, the possibilities of these malfunctions and disorders were not presented properly in the package insert of the medication. Accordingly, the product was not in line with the expected safety guidelines. Secondly, the Court concluded that Sanofi produced and marketed a defective product.
With respect to the participants in the class action, the Court sets out the criteria to be eligible to take part in the class action. The Court also ruled that plaintiffs can opt in to the class action within five years. APESAC will, on behalf of the plaintiffs, negotiate the amount of compensation. It is up to the Court to approve the settled compensation. The Court of Paris further ruled that the plaintiffs are entitled to a 95% loss of opportunity to choose a less dangerous therapeutic alternative and ordered both Sanofi and Allianz to pay a provision of € 120.000 to cover the future costs of the class action procedure.
By ruling of 31 March 2022,[1] the CAT refused to grant certification to either one of two competing proposed collective claims relating to the forex cartel.[2] Both O’Higgins and Evans had applied for an opt-out collective proceedings order (CPO), seeking to combine follow-on claims for damages arising from the said cartel. The CAT assessed whether the level of generality or abstraction contained in the proposed claims were sufficient to amount to “reasonable grounds for making the claim”[3], and concluded that the CAT had “no doubt this test is not met and the both Applications could be struck out (…)”. Both applicants may, however, submit revised applications for certification.
- Competition Appeal Tribunal 31 March 2022, [2022] CAT 16, Case Nos: 1329/7/7/19 and 1336/7/7/19.[↩]
- European Commission decisions of 16 May 2019, Cases AT.40135 (Three Way Banana Split) and AT.40135 (Essex Express).[↩]
- Within the meaning of rule 41(1)(b) of the Tribunal Rules.[↩]
On 23 March 2022, the Court of Appeal handed down another judgment in the case between investment funds Allianz Global Investors GmbH and Others and several banks including Barclays, Citibank and JPMorgan in the context of the forex-cartel.[1] The claimants had applied to strike out the banks’ defence that the funds had avoided or “passed on” to investors all or part of the losses they are claiming against the Banks in these proceedings.
The defendants argued that the funds passed on their losses to investors who cashed out on assets with reduced value, and who could thus claim these damages themselves. The claimants, on the other hand, argued that the investors themselves would have no cause of action.
The UK High Court had sided with the defendants in February 2021 (which we reported on in Q2021-1), in considering that the alleged pass-on would not be impossible or bound in law to fail. The Court of Appeal, however, now ruled otherwise and concurred with the claimants instead. The court said the lower court was wrong to decide that the individual investors had independent causes of action and besides, that any potential benefit of lower redemptions for the funds is to be regarded as “collateral” and therefore would fall under the exception for collateral payments, which the law treats as not making good the claimant’s loss.
