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 24 November 2020, the European Parliament approved the ‘Directive on representative actions for the protection of the collective interests of consumers’. [1] The Directive is part of the New Deal for Consumers aimed at strengthening European consumer rights and their enforcement. This covers rights arising from European regulations and directives on matters such as unfair commercial practices, tourism, product safety, energy, financial services, telecommunications, product liability and data protection.
Member States have from 24 December 2020 until 25 December 2022 at the latest to adapt their legislation insofar as they do not yet comply with the Directive. The new national provisions should then be applied as from 25 June 2023 to representative actions brought on or after 25 June 2023.
Member States must provide for an opt-in or opt-out mechanism, or a combination of the two. They must also ensure that individual consumers who are not habitually resident in the Member State of the court or administrative authority before which a representative action has been brought are required to explicitly agree to be represented in that representative action. This means that an opt-in mechanism must in any event apply to consumers in this category.
Furthermore, Member States have to designate competent authorities that can institute representative actions. Member States are also required to ensure that representative actions can be brought before their District Courts or administrative authorities by competent authorities designated in another Member State for such representative actions.
Five aluminium forging companies and ten of their employees have been fined by the Bundeskartellamt for a total amount of approximately € 175 million. The companies were found to be in general agreement that their respective procurement costs and costs increases would be passed on to their customers. The companies that were fined are OTTO FUCHS Beteiligungen KG, Leiter Group GmbH & Co KG, Strojmetal Aluminium Forging GmbH, Presswerk Krefeld GmbH & Co KG and Bharat Forge Aluminiumtechnik GmbH. The company Hirschvogel Aluminium GmbH filed a leniency application that triggered the investigation and was therefore spared a fine. [1]
