In a press release entitled “Review of 2020”, the Bundeskartellamt reported that the number of leniency applications was decreasing due to a rise in private damages proceedings. The Bundeskartellamt is therefore exploring innovative investigation methods, such as market screening, and will also expand the range of possibilities offered by their digital anonymous whistle-blowing system. In 2020, 13 companies made use of the leniency programme to inform the Bundeskartellamt about infringements in their sector. [1]
On 10 November 2020, the European Commission sent a Statement of Objections to Amazon for the use of non-public independent seller data, and opened a second investigation into Amazon’s e-commerce business practices. The Commission disclosed the fact that it takes issue with Amazon systematically relying on non-public business data of independent sellers who sell on its marketplace, to the benefit of Amazon’s own retail business, which directly competes with these third-party sellers. [1]
On 7 October 2020, the European Commission disclosed that it had accepted commitments by Broadcom to ensure competition in chipset markets for modems and set-top boxes. Broadcom customarily made agreements containing exclusivity or quasi-exclusivity arrangements and/or leveraging provisions concerning specific technology; so-called Systems-on-a-Chip, for TV set-top boxes and internet modems. It has now undertaken to suspend all existing agreements and to refrain from entering into new agreements containing such terms. The commitments are binding for seven years vis-à-vis all device manufacturers and include products not covered by the interim measures decision that the Commission adopted in October 2019. [1]
On 6 October 2020, the European Commission disclosed that it had sent a Statement of Objections to Conserve Italia Soc. Coop. Agricola and its subsidiary Conserves France SA for participation in the canned vegetables cartel. In its Statement of Objections, the Commission informed the companies of its preliminary view that they have breached EU antitrust rules by colluding to distort competition through horizontal price fixing, market sharing and allocating customers for the supply of certain types of canned vegetables within the European Economic Area. [1]
This is the next chapter in the Commission’s investigation into the canned food market, which has already resulted in a settlement decision against three other manufacturers, Bonduelle, Coroos and Group CECAB, which admitted their involvement in the cartel and received a total fine of € 31.6 million. On 16 December 2020, the Commission published a non-confidential version of this decision. [2]
At an EU General Court hearing on 22 October 2020, Nichicon Corp, a Japanese capacitor manufacturer, argued that the level of the fine imposed on it by the European Commission (€ 7.29 million) was disproportionate, and that sufficient proof of (the extent of) its involvement in the cartel was lacking. The fine stems from a 2018 European Commission decision in which eight companies were fined for their involvement in a cartel between aluminium and tantalum electrolytic capacitors from Japan. The Commission had relied upon a leniency statement of a competitor of Nichicon Corp as proof of its involvement in the cartel. According to Nichicon Corp, such statements cannot be relied upon because competitor companies might be biased against other (suspected) cartel members with a view to the leniency they might receive. The Commission argued that there was no reason to assume that leniency statements would be biased or that a company would lie. That would not be in the company’s interest, because, if the Commission were to find out, the leniency might be denied as a result. Nichicon Corp further contested the extent of its involvement, saying that it had been held liable for meetings in which it did not participate, as well as that (its involvement in) the cartel had no clear link with the EEA. The Commission countered by saying that it was sufficient that it had shown that there was a “single and continuous infringement” which also covered the production in Europe. As to the level of the fine, Nichicon Corp argued that the fine was disproportionate compared to the level of fines in other jurisdictions for the same conduct, but the Commission took the view that no principle applies in this case to the effect that a person/company should not be fined twice. [1]
- Nichicon v. Commission T-342/18.[↩]
On 24 November 2020, the CJEU decided that a hotel using the platform com may, in principle, bring proceedings against Booking before a court of the Member State in which that hotel is established in order to bring possible abuse of a dominant position to an end. The CJEU made this decision in response to questions referred to it by the Highest German Court (the Bundesgerichtshof), following an appeal against a judgment of the Higher Regional Court in Schleswig, Germany. The latter court had found that it had no jurisdiction to hear the case against Booking by the claimant hotel, Wikingerhof – a company governed by German law – because Booking has its seat in the Netherlands. According to the Regional Court, under the Brussels Regulation there was no general jurisdiction: neither special jurisdiction for performance of a contractual obligation under Article 7(1)(a) nor that of the court for the place where the harmful event occurred in matters relating to tort, under Article 7(2). [1]
The Court of Justice ruled on the question whether there was jurisdiction under Article 7(2) of the Brussels Regulation. It answered this in the affirmative, concluding that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of the Brussels Regulation. [2]
- The Brussels Regulation: 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 judgments in civil and commercial matters.[↩]
- Court of Justice of the European Union, Press Release NO 147/20, 24 November 2020.[↩]
On 17 December 2020, the Advocate General’s opinion was published in case C-709/19, in which the Supreme Court put preliminary questions to the European Court of Justice on jurisdiction in class actions pursuant to the Brussels I Regulation (Recast). [1] The underlying case pertains to a claim by the Dutch Association of Stockholders (VEB) about a decrease in the value of BP shares due to alleged deceit by BP regarding to an oil leak in the Gulf of Mexico. The District Court and the Court of Appeal had held earlier that the Dutch court does not have jurisdiction, as BP has its registered office in the United Kingdom.
The Advocate General’s response was that the place where the investment account is held does not provide a sufficient basis for the international jurisdiction of the Member State concerned without additional circumstances. The Advocate General also discussed other circumstances (such as consumers being included within those represented, and a settlement from a third country) which, in his opinion, likewise did not constitute special circumstances.
The Supreme Court had also asked whether the rules of jurisdiction should be applied differently (in other words: less strictly) in cases in which the VEB institutes a class action. According to the Supreme Court, the effectiveness of the class action mechanism would be lost if the VEB had to lodge a claim at every place where damage occurred. In the Advocate General’s view, the rules of jurisdiction in Article 7(2) of the Brussels I Regulation (Recast) should not be applied differently even in the case of a class action by the VEB. Although the Advocate General acknowledged the risk identified by the Supreme Court, he took the view that the regime under the Regulation offered no other option. The Advocate General’s response on this point is in line with the CDC judgment (C-352/13, EU:C:2015:335), in which the Court of Justice did not accept that transfer and bundling of claims could affect the determination of international jurisdiction.
MLex has reported [1] that banks including BNP Paribas, Deutsche Bank, Goldman Sachs and Standard Chartered are being targeted by a new damages claim filed by Allianz Global Investors and 174 other claimants for alleged manipulation of the currency markets. The claimants’ complaint is based on two European Commission decisions of May 2019 in the FOREX scandal, in which Barclays, Citigroup, Royal Bank of Scotland, JPMorgan and the Japanese MUFG – formerly Bank of Tokyo-Mitsubishi UFJ – were called to account for their behaviour.
It has emerged from a Competition Appeal Tribunal decision that ABB has reached a settlement in a cartel damage case instituted by the UK National Grid over the power cable cartel. The UK energy network operator’s lawsuit followed a 2014 decision by the European Commission to impose a fine on 11 cable manufacturers because they formed a global cartel for almost ten years with effect from 1999. The claim is still being pursued against Prysmian, another cable manufacturer [1].
DAF, Iveco and other truck manufacturers have lost their appeal to the Court of Appeal of England and Wales against a judgment that deemed them legally bound by non-essential recitals of a 2016 EU cartel decision. The Court of Appeal ruled that the appeal of the truck manufacturers against an earlier decision by the Competition Appeal Tribunal should be dismissed. The judgment should be seen as a warning to companies combating damages actions arising from the European Commission’s antitrust decisions. [1]
