On 8 July 2021, the European Commission published a press release stating that the EC has found that Daimler, BMW and Volkswagen group (Volkswagen, Audi and Porsche) breached EU antitrust rules by colluding on technical development in the area of nitrogen oxide cleaning in the period between 25 June 2009 and 1 October 2014.[1] The Commission has imposed a fine of €875,189,000. Daimler was not fined, as it had revealed the existence of the cartel to the Commission. All parties acknowledged their involvement in the cartel and agreed to settle the case. This is the first time that the Commission concluded that collusion on technical development amounts to a cartel.
The five car manufacturers possessed the technology to reduce harmful emissions beyond what was legally required under EU emission standards. But they avoided to compete on using this technology’s full potential to clean better than what is required by law. Instead, they held regular technical meetings to discuss the development of the selective catalytic reduction (SCR) technology which eliminates harmful nitrogen oxide (NOx) emissions from diesel passenger cars through the injection of urea (also called “AdBlue”) into the exhaust gas stream. They also removed the uncertainty about their future market conduct concerning NOx emissions cleaning beyond and above the legal requirements (so-called “over-fulfilment”) and AdBlue-refill ranges. This means that they restricted competition on product characteristics relevant for the customers.
The conduct of the five car manufacturers constitutes an infringement by object in the form of a limitation of technical development under Article 101(1)(b) of the Treaty and Article 53(1)(b) of the EEA Agreement.
[1] European Commission, “Antitrust: Commission fines car manufacturers €875 million for restricting competition in emission cleaning for new diesel passenger cars”, 8 July 2021, https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3581.
According to the CMA’s preliminary findings, Pfizer Ltd. and Flynn Ltd. abused their dominant position by charging the NHS unfair prices for four years for phenytoin sodium capsules, an anti-epilepsy drug. [1]
In the CMA’s opinion, the companies used a legal loophole by de-branding the drug, with the effect that the drug was not subject to price regulation in the way branded drugs are.
The companies Pfizer Ltd. and Flynn Ltd. can respond to these preliminary findings in the Statement of Objections. After studying these objections, the CMA must decide whether they have broken the law.
[1] CMA press release, ‘CMA accuses pharma firms of illegal pricing’, 5 August 2021.
The CMA imposed fines of more than £100 million on Advanz Ltd. after it had excessively inflated the price of thyroid tablets for more than eight years, to the detriment of patients and the National Health Service (NHS).[1]
A previous investigation by the CMA reveals that in the period from 2009 to 2017, Advanz Ltd. charged unfair prices for the supply of liothyronine tablets used to treat thyroid hormone deficiency. Advanz Ltd. was able to do so because there was little or no competition in the sale of liothyronine tablets. The investigation was part of the CMA’s ongoing work in the pharmaceutical sector.
[1] CMA press release, ‘CMA fines pharma firm over pricing of crucial thyroid drug’, 29 July 2021.
On 15 July 2021, the CMA announced that it had imposed fines totalling more than £260 million on various pharmaceutical firms, for competition law breaches in relation to the supply of hydrocortisone tablets for which they charged excessive and unfair prices to the National Health Service (NHS). The CMA’s decision also entails that the NHS may claim damages for the conduct of the companies.[1]
The CMA had previously conducted an investigation into the conduct of these pharmaceutical companies, which revealed that Auden Mckenzie Ltd. and Actavis UK Ltd. (now known as Accord-UK Ltd.) had been massively overcharging the NHS for hydrocortisone tablets for nearly ten years. These pharmaceutical companies also abused their dominant position by paying two potential competitors, Waymade PLC and AMCo Ltd. (now known as Advanz Pharma Services Ltd.), not to enter the market.
[1] CMA press release, ‘CMA finds drug companies overcharged NHS, 15 July 2021.
On 17 August 2021, the Bundeskartellamt imposed a fine totalling around 2 million euros on Fond Of GmbH, Cologne, on account of vertical price fixing.[1] The President of the Bundeskartellamt stated that Fond Of set minimum prices for its school backpacks and school bags and made sure that the retailers involved would not undercut these prices. Fond Of GmbH as well as the retailers involved monitored compliance with the prices and rules for online sales at regular intervals and called on retailers to comply with these. In setting the fine, the Bundeskartellamt took into account that the company had cooperated extensively with the authority.
[1] Bundeskartellamt press release, ‘Bundeskartellamt imposes fine on the Cologne-based company Fond Of GmbH’, 17 August 2021.
On 5 August 2021, the Bundeskartellamt announced that it had imposed fines totalling approximately 21 million euros on three manufacturers and two retailers of musical instruments and on staff responsible, as they are accused of resale price maintenance (manufacturers and retailers) and of agreeing on horizontal price-fixing (retailers).[1] The manufacturers are Yamaha Music Europe GmbH, Roland Germany GmbH, and Fender Musical Instruments GmbH. The retailers are Thomann GmbH and MUSIC STORE professional GmbH. In setting the fine, the Bundeskartellamt took into account that the parties involved had cooperated extensively with the authority in uncovering the agreements and that a settlement could be reached.
[1] Bundeskartellamt press release, ‘Bundeskartellamt imposes fines on manufacturers and retailers of musical instruments’, 5 August 2021.
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.
