Dear Reader,
We’re proud to present an entirely revamped Q Class Actions Update.
And if we may say so ourselves, we think it’s a great improvement.
Firstly, from this quarter onwards, class actions in the broad sense of the term will take centre stage. Not least because class actions are a hot topic across the globe at the moment. Particularly so in the Netherlands, where, for example, numerous cases are being initiated pursuant to new legislation. We will monitor the resulting slew of case law for you. And of course, we’ll continue to focus on developments related to cartel damage.
Secondly, Q is now presented in website format, not only making it more of a pleasure to read but also enabling readers to consult it as a source of information. Many will find the easily-searchable database useful. We’re pleased to contribute in this way to further developments in the field of class actions.
Louis Berger & Hans Bousie
With contributions from Christiaan Alberdingk Thijm, Frank Peters, Bas Braeken, Michelle Krekels, Sophie van Everdingen, Stefan Campmans, Nathan van der Raaij, Jacob van de Velde and Tessel Bossen
On 11 June 2021, Mlex reported on plans for a new post-Brexit cooperation agreement between antitrust investigators in the EU and the UK.[1] The plan is designed to bridge the post-Brexit gap created by the UK’s departure from an arrangement that allowed competition authorities across the whole of Europe to share sensitive information and coordinate enforcement activities.
It is clear from the draft guidelines that should serve as the basis for further negotiations that the EU is aiming for an agreement that goes beyond existing bilateral agreements, such as those with Switzerland, Japan and Canada.
For example, the bilateral agreement with the United Kingdom should enable the parties to ask each other to collect information or carry out inspections on behalf of the other, as well as letting them share the confidential information collected. In addition, the intention would be for the parties to alert each other at an early stage if an investigation could damage the other party’s interests. Finally, both parties could attend confidential hearings in Brussels when a particular investigation gets to that stage.
The details of the deal are still being discussed; it is hoped that agreement can be reached by the end of the year.
[1] Lewis Crofts, ‘EU eyes unprecedented antitrust cooperation deal with UK to bridge post-Brexit gaps’, Mlex 11 June 2021.
On 28 April 2021, Martijn Snoep, Chairman of the Netherlands Authority for Consumers and Markets (ACM), gave a speech at the GCE Conference Sustainability and Cooperation.[1] He argues that, in addition to government authorities, businesses and consumers, competition authorities must actively contribute to achieving the new European climate targets in order to prevent drastic climate change. In particular, a revision is needed of the Commission’s competition policy: a new interpretation of the fair share test.
The fair share test currently entails that anti-competitive arrangements between competitors are only permitted if consumers are fully compensated by the benefits that the agreements generate for them. On behalf of the ACM, Snoep argued for an exception to be made for agreements that lead to environmental benefits for the whole of society by the reduction of negative externalities. In other words, these agreements would meet the fair share test if the environmental benefits to society as a whole outweigh the negative effects to consumers. This requires companies to work together to achieve Europe’s climate goals. According to Snoep, the Commission’s current interpretation of the fair share test hinders such cooperation.
In response, the ACM has drawn up new sustainability guidelines. First, the ACM wanted to show how companies could cooperate to achieve sustainability goals without infringing competition rules. Second, the ACM told the business community that it was open to discussing with them their sustainability initiatives, that it was willing to give guidance, and that it would not impose any fines on companies that follow the guidelines in good faith. And third, the ACM’s aim was to show how the fair share test could be modified without opening the floodgates to all sorts of agreements aiming to achieve various public goals.
[1] Martijn Snoep, “Speech Duurzaamheid en samenwerking”, GCR Connect 28 April 2021.
As a result of agreements made in the German coalition agreement of 2018, the Bundeskartellamt, the German antitrust watchdog, has published guidelines that companies can adhere to when working together with others as a cooperative in order to prevent the cooperative from being regarded (after the fact) as a cartel.[1]
The guidelines provide explanation of the background, purpose and scope of the prohibition on cartels and the possible leeway for collaboration, for enterprises working (not only) as a cooperative, including on the basis of practical examples. The guidelines are also intended for small and medium-sized enterprises, which often do not have access to specialised legal advice.
[1] Bundeskartellamt press release, ‘Leitlinien zur Vereinbarkeit des Genossenschaftswesens mit dem Kartellrecht – Öffentliche Konsultation’, 4 May 2021.
Italy introduced new rules regarding class action lawsuits on 19 May 2021.[1] The new rules make it possible to start class actions in more areas of law, as well as expanding the opt-in system (in which it is possible to join a class after a favourable judgment), creating better opportunities for evidence (such as disclosure with fines), and encouraging settlements. To emphasise their more general scope, the new rules are now included in the Italian Code of Civil Procedure (ICPC) and no longer in the Consumer Code.
[1] Law n. 31/2019, published on 18 April 2019.
On 17 June 2021, the Legal Affairs Committee of the European Parliament issued a Draft Report with recommendations to the European Commission on Responsible private funding of litigation.[1] The report also includes a proposal for a directive on responsible private funding of litigation. The Legal Affairs Committee proposes, amongst other things, to establish a system of authorisation for litigation funders to ensure that funding is only provided by entities that are committed to complying with minimum standards in terms of transparency, governance and capital adequacy.
[1] The Legal Affairs Committee, European Parliamentary Research Service, Responsible private funding of litigation. European added value assessment, 17 June 2021.
On 8 June 2021, various airlines went to court to reclaim interest on the fine they had wrongly paid. In 2010, the European Commission (EC) had imposed a fine on them for mutually discussing their prices, but this fine was reversed by the court in 2015.[1]
As the fine involved was €790 million, the interest will also be considerable. The steps reportedly taken by the airlines to recover this interest are in response to a ruling by the European Court of Justice in January 2021 that interest on wrongly paid fines must also be repaid.
[1] According to Mlex, ‘Cathay Pacific, SAS, Air Canada go to EU court over interest on annulled cargo-cartel fines’, 8 June 2021.
After the first fines imposed on ICAP in 2015 were declared invalid by the court in 2019, the European Commission (EC) decided on 28 May 2021 to impose fines on ICAP once again.[1] The new decision corrected the procedural error and included a detailed reasoning on the fine calculation. ICAP is now required to pay a fine totalling nearly €6.5 million.
[1] European Commission decision of 28 May 2021, Case COMP/AT.39861 (Yen Interest Rate Derivatives).
On 21 May 2021 Nomura Holdings, Inc. announced that it was considering appealing the fine (EUR 130 million) that had been imposed by the European Commission on its UK subsidiary, Nomura International, for its participation in a European Government Bond (‘EGB’) cartel. In a company statement, Nomura announced that it would consider all options after thoroughly examining the content of the Decision.
The fine stems from a European Commission decision in which seven investment banks were fined for having breached EU antitrust rules through the participation of a group of traders in a cartel in the primary and secondary market for EGBs.[1] According to the European Commission, the infringement by Nomura International in respect of anti-competitive conduct in the European Economic Area took place for a period of approximately 10 months in 2011.
The violation was a result of “certain historical behaviour” of two of Nomura International’s former employees. The European Commission stated that the traders of the seven companies operated in a closed circle of trust. These traders were in regular contact with each other mainly in multilateral chat rooms, where the relevant traders exchanged commercially sensitive information. They informed and updated each other on their prices and volumes offered in the run-up to the auctions and the prices shown to their customers or to the market in general. They discussed and provided each other with recurring updates on their bidding strategy in the run-up to the auctions of the Eurozone Member States when issuing Euro-denominated bonds on the primary market, and on trading parameters on the secondary market.
[1] According to Mlex, Antitrust: Commission fines investment banks € 371 million for participating in a European Governments Bonds trading cartel, 20 May 2021.
On 28 April 2021, the European Commission (EC) ruled that Bank of America Corporation and Merrill Lynch International, Crédit Agricole SA and Crédit Agricole Corporate and Investment Bank, Credit Suisse Group AG and Credit Suisse Securities (Europe) Limited and Deutsche Bank AG, DB Group Services (UK) Limited and Deutsche Securities Inc. had violated the European competition rules by aligning their activities, increasing their income at the expense of third parties.[1]
The resulting fines imposed were as follows: €12,642,000 on Bank of America Corporation and
[1] European Commission press release, ‘Antitrust: Commission fines investment banks €28 million for participating in SSA bonds trading cartel’, 28 April 2021.
