Competition Flashback Q4 2022 – EU and Dutch competition law developments
This is the Competition Flashback Q4 2022 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).
Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.
Overview Q4 2022
- Long-awaited EU Foreign Subsidies Regulation adopted
- Overview highlights merger cases European Commission
Cartels and vertical restraints
- Vertical price fixing fine Samsung upheld by ACM
- Styrene cartel member seeks to recover fine after takeover and guarantee from leniency applicant
- Italian steel companies fined more than 30 years after cartel infringement
- Commission accepts commitments Amazon on use of non-public data and access to Buy Box and Prime
- Civil court refers preliminary questions about legality of Booking’s parity clauses
Follow-on competition damages claims
- CJEU holds that disclosure of evidence in cartel damages claims is not limited to pre-existing evidence
- Director must contribute € 13 million for active, personal role in Dutch shrimp cartel
- Court of Appeal confirms applicability of Dutch law and validity of assignments in Aircargo cartel damages case
Consumer protection law
- ACM may not require an undertaking to point consumers to existence of infringement
- Energy companies offer commitments to ACM to adjust sustainability claims
Public Enterprises (Market Activities) Act
- Court endorses two-step test for distinction between exercise of public powers and an economic activity
Long-awaited EU Foreign Subsidies Regulation adopted
Council of the European Union, press release of 28 November 2022
On 28 November 2022, the EU Foreign Subsidies Regulation (“FSR”) was adopted. The FSR introduces powers to the European Commission (“Commission”) to act against non-European subsidies that (may) distort competition within the EU internal market. To date, only subsidies provided by European Member States are subject to state aid rules and there is no control of subsidies originating from third countries. This new regulation will close the current enforcement gap.
Financial contributions provided directly or indirectly by a non-European government in the context of a merger or public procurement (exceeding certain FSR notification thresholds) must be reported to the Commission. The term financial contribution is defined broadly and includes, inter alia, capital injections, subsidies, tax exemptions or the granting of exclusive rights without adequate remuneration. The Commission can also initiate an ex officio investigation of a subsidy provided by a foreign government. In its investigation, the Commission will assess whether the subsidy may distort the internal market, examining, among other things, whether the foreign subsidy may strengthen the competitive position of the undertaking concerned. In doing so, the Commission will analyse the negative and positive effects of the subsidy on the development of the relevant economic activity to which the subsidy relates. If the Commission concludes that the subsidy distorts competition in the internal market, it may decide to impose structural or behavioural remedies.
The FSR will be officially published in January 2023 and will enter into force six months later. From 1 October 2023 onwards, companies contemplating mergers and acquisitions must thus not only take into account a potential notification requirement under the merger control regime, but also the new FSR regime, as well as the Act on security screening of investments, mergers and acquisitions (in Dutch: Wet Veiligheidstoets Investeringen, Fusies en Overnames, “Vifo Act”) that will enter into force the first quarter of 2023 (see our blog on the Vifo Act here).
Overview highlights merger cases European Commission
The Commission is currently conducting a phase II-investigation into the acquisition by Booking.com of Etraveli. Both companies are active on the market for online travel agencies (“OTAs”). Booking.com is a platform for accommodation rental and also owns metasearch platform KAYAK, a price comparison platform for airline tickets and OTAs. Etraveli is a flight OTA that sells airline tickets for various airlines. In its preliminary investigation, the Commission considers a potential dominant position of Booking.com on the OTA market. The Commission is concerned that the acquisition of Etraveli will increase the barriers to enter the OTA market. In addition, the Commission will investigate whether Booking.com could have the ability and incentive to exclude competing flight OTAs from its platform KAYAK as a result of the acquisition of Etraveli.
In September 2022, Microsoft notified its acquisition of Activision Blizzard (“Activision”) to the Commission. Activision is a developer and publisher of games for PCs, consoles, and mobile devices, as well as a distributor of PC games. As the Commission identified some preliminary concerns in its phase I-investigation, it will now further investigate how the acquisition may affect competition in the markets for (i) PC video games, (ii) video games on consoles, and (iii) PC operating systems (Windows). The Commission foresees the risk that Microsoft could exclude competing distributors from Activision’s PC and console games. Consequently, the Commission foresees the possibility that PC operating system providers will no longer be able to compete with Microsoft Windows post-transaction. The integration of Windows and Activision could potentially also deter users from purchasing PC’s that do not run on the Windows-system, according to the Commission.
Lagardère and Vivendi are both French multimedia groups active as, inter alia, book and magazine publishers. After the acquisition of Lagardère by Vivendi, the merged entity would become the largest player on the French book market. The Commission decided to conduct an in-depth investigation into the effects of the acquisition on several markets, namely (i) the market for the purchasing of author’s rights for French-language books, (ii) the market for the distribution and marketing of French-language books, and (iii) the market for the sale of French-language books to retailers. Since both companies also publish magazines, the Commission will also examine how the prices, diversity and quality of French magazines may be affected by the transaction.
At the request of several national competition authorities, including the Dutch Authority for Consumers and Markets (in Dutch: Autoriteit Consument en Markt, “ACM”), the Commission will investigate Cochlear’s acquisition of Oticon. Oticon and Cochlear both produce specialised hearing aids that can be inserted as implants. As the transaction does not meet the EU merger thresholds, the companies are not formally subject to a notification obligation under the EU Merger Regulation. Several national competition authorities have nevertheless filed a request for referral with the Commission under Article 22 of the Merger Control Regulation. They are concerned that the acquisition will restrict future development and innovation and, this way, limit future competition.
The acquisition by Broadcom of VMware concerns the markets for software and hardware. Broadcom is primarily a manufacturer of hardware, such as Network Interface Cards and storage adapters. With the proposed acquisition of software provider VMware, Broadcom will be further expanding its business into the software market. In a second phase investigation, the Commission will assess whether and, if so, how the acquisition could harm the interoperability between VMware’s software and hardware providers competing with Broadcom. The Commission will, furthermore, investigate whether Broadcom could exclude competing hardware providers from VMware’s software.
Vertical price fixing fine Samsung upheld by ACM
ACM, decision of 21 November 2022
The ACM does not follow Samsung in that illegal vertical price fixing can only occur if the price influencing, as identified by the ACM, is accompanied by coercive measures. The ACM is of the opinion that, by sharing competitors’ prices and frequently contacting retailers about price changes, Samsung provided a significant incentive for these retailers to follow Samsung’s price requests. According to the ACM, Samsung, along with its customers accepting interference in their pricing policies, had the overarching goal of maintaining higher margins. This affirms the existence of an overall, anti-competitive objective and a single and continuous infringement, according to the ACM.
The procedural objections brought forward by Samsung were also dismissed. According to the ACM, the fact that the Legal Department put a different emphasis on the evidence presented by the Competition Department does not mean that the fining decision exceeds the scope of the investigative report. Furthermore, the ACM disagrees with Samsung in that the failure to involve the retailers in the infringement has breached Samsung’s rights of defence. In fact, retailers were extensively questioned about their pricing during the investigation.
Finally, the ACM dismisses Samsung’s arguments as regards the amount of the fine. In its decision on objection, the ACM underlines that the fine cannot be considered disproportionate, as it has already applied a low seriousness factor and it has also taken into account the mitigating circumstance that this is the first time the ACM imposes a fine for vertical price alignment (eventually leading to a reduction of 20%).
Styrene cartel member wishes to recover fine after takeover and guarantee from leniency applicant
European Commission, decision of 29 November 2022
In November 2022, the Commission imposed a number of cartel fines adding up to € 157 million on various buyers of styrene. Styrene is a raw material that can be processed into a number of plastics, including rubber and latex. The Commission fined the styrene customers for exchanging commercially sensitive information and coordinating negotiation strategies with the aim of reaching a lower reference price.
The Commission launched an investigation into the styrene sector following a leniency application by cartel member Ineos. As Ineos was the first to present itself to the Commission and provide information about the anti-competitive behaviour, it escaped a fine for participation in the cartel. Four of the other five cartel members received a reduction of the fine as a result of their cooperation with the Commission’s investigation.
Particularly interesting about this case is that cartel participant Synthos has announced that it will initiate civil proceedings to recover its fine (€ 32.5 million) from Ineos. In 2016, Synthos acquired part of Ineos’ styrene division, with a guarantee of Ineos that the division was operating in compliance with European competition rules. A year after the acquisition, Ineos reported the cartel to the Commission. Synthos puts forward that it had no knowledge of the illegal behaviour within the styrene division and points to the guarantee provided by Ineos.
Italian steel companies fined more than 30 years after cartel infringement
General Court of the European Union, judgment of 9 November 2022
The Commission had already imposed fines for the same conduct in 2002 and 2009, but these fines were annulled due to procedural errors (see here and here). The Commission nevertheless imposed another fine in 2019, albeit mitigated due to the length of the investigation.
The judgment of the General Court of the European Union (“General Court”) of 9 November concerned the legality of the latter fine. The General Court found that the Commission had not committed any procedural errors in relation to the fine this time and that the duration of the proceedings was not unreasonable given the complexities of the case. The General Court also held that the ne bis in idem principle had not been violated as the Commission’s previous decisions had been annulled. The Court further considered that a reduction of the fine was appropriate, also considering the reduced deterrent effect due to the long period between the end of the infringement and the adoption of the contested decision.
Commission accepts commitments Amazon on use of non-public data and access to Buy Box and Prime
European Commission, decisions of 20 December 2022
On 20 December 2022, the Commission accepted the commitments offered by Amazon, addressing the Commission’s initial competition concerns. In July 2019, the Commission opened an investigation into Amazon’s use of non-public marketplace seller data for the benefit of its own sales services. In doing so, Amazon allegedly abused its dominant position. To address these concerns, Amazon has now committed to stop using non-public data from independent sellers on its online marketplace to improve its own retail business.
The Commission opened a second investigation into Amazon on 10 November 2020 regarding the possible bias by Amazon in granting sellers access to Amazon’s Buy Box and the Amazon Prime programme. The Commission preliminarily found that Amazon used preferential treatment in its selection of products for the Buy Box; a kind of ‘buy-now’ product catalogue at the top of the web page. Amazon primarily featured itself or third-party sellers using Amazon’s delivery services in the Buy Box. Similar preferential treatment was thought to be used in Amazon’s selection of suitable sellers for Amazon Prime.
Amazon commits to treat all sellers equally when ranking the offers for the Buy Box and to display a second competitive offer in the Buy Box. As regards Prime, Amazon promises to use non-discriminatory terms for the selection of sellers. Amazon further pledges not to use information it obtains from other carriers through Prime.
The commitments cover all of Amazon’s current and future marketplaces in the EEA, with the exception of Italy in so far it concerns the Buy Box and Prime, as the Italian competition authority had previously issued its own decision on these matters. The commitments regarding Prime and the presentation of a second offer in the Buy Box remain in force for seven years; the other commitments will apply for five years. For more information on platform and data regulation, see our recent blog on the role of data in competition law.
Civil court refers preliminary questions about legality of Booking’s parity clauses
Amsterdam District Court, judgment of 26 October 2022
In civil proceedings between Booking.com and a group of German hoteliers, the question has arisen whether Booking acted unlawfully by using ‘broad’ parity clauses in its general terms and conditions until 1 July 2015 and ‘narrow’ parity clauses from 1 July 2015 to 1 February 2016. Parity clauses prohibit hoteliers from offering better terms and conditions outside Booking’s platform; not on their own hotel websites (narrow), nor on other booking platforms (broad).
In this judgment, the District Court of Amsterdam first addressed the question of whether hoteliers are bound by the parity clauses. According to the District Court, the mere presence of the hotels on Booking’s platform is insufficient to speak of (tacit) acceptance of the parity clauses in Booking’s regularly amended general terms and conditions. The question whether these clauses apply to a specific hotel must thus be assessed on a case-by-case basis. Another question concerned the probative value of previous decisions by the German competition authority and German courts finding the illegality of the broad parity clauses. The court ruled that, under Article 9(2) of the Cartel Damages Directive, decisions of foreign competition authorities have free probative value.
In its substantive competition assessment, the court notes that broad and narrow parity clauses do, in any event, not qualify as a hardcore restriction within the meaning of Article 4 of the Vertical Block Exemption Regulation (“VBER”). Article 5(1)(d) of the VBER does however establish that broad parity clauses constitute an excluded restriction (see our blog on the new VBER here). This means that, for broad parity clauses, an individual analysis is necessary. In this context, the question arises whether parity clauses can qualify as an ancillary restriction. The court noted that, in order to answer that question, the relevant market on which the OTAs operate must first be defined. As there has been some discussion on defining the relevant market, the court decided to refer preliminary questions to the Court of Justice of the European Union (“CJEU”) regarding both the application of the ancillary restraints doctrine to parity clauses as the relevant market definition for OTAs.
CJEU holds that disclosure of evidence in cartel damages claims is not limited to pre-existing evidence
Court of Justice of the European Union, judgment of 10 November 2022
In its judgment in Paccar, the CJEU ruled that requests for the disclosure of evidence do not solely have to relate to pre-existing evidence, but can also include documents that have to be prepared ex novo. In doing so, the CJEU clarifies what is to be understood by ‘evidence’ within the meaning of Article 5(1) of the Cartel Damages Directive and further emphasises the importance of effective private enforcement.
The case concerns a preliminary referral from a Spanish court regarding a follow-on cartel damages claim arising from the trucks cartel. In 2016 and 2017, the Commission imposed multiple fines totalling nearly € 4 billion on, among others, Paccar, Scania and DAF. As a result of that cartel, purchasers of these trucks filed claims for damages with the Barcelona court. In these domestic proceedings, disclosure of certain evidence was sought in order to compare the recommended prices charged before, during and after the cartel period. The Spanish court asked the CJEU whether Article 5(1) of the Damages Directive also covers documents that did not exist before the investigation and had yet to be compiled or prepared by the cartelists.
The CJEU answers this question in the affirmative. It stresses that private enforcement is necessary to ensure full compliance with European competition law, particularly because private enforcement can also be used to recover indirect damages to the structure and functioning of the market as a whole. Against that background, the CJEU finds that, although the wording of Article 5(1) of the Damage Directive appears to refer merely to pre-existing evidence, the context as well as the purpose of that provision should be taken into account. Article 5(1) of the Damages Directive must be applied effectively in order to compensate for the information asymmetry between the parties and must not lead to the creation of obstacles that render the private law enforcement of EU competition rules more difficult.
The CJEU concludes that ‘evidence’ within the meaning of Article 5(1) Damages Directive thus also includes evidence that has yet to be created. However, this right of access to such ex novo evidence is not unlimited: it is up to the national court to examine thoroughly whether a request for evidence would be disproportionately burdensome for the defendants.
For a detailed analysis of this judgment, please see our blog.
Director must contribute €13 million for active, personal role in Dutch shrimp cartel
Court of Appeal of Arnhem-Leeuwarden, judgment of 6 December 2022
The Court of Appeal of Arnhem-Leeuwarden recently upheld the district court’s ruling that the director of the Heiploeg-group can be held personally liable due to his (factual) contribution to the shrimp cartel. The director is required to pay € 13 million in damages.
In 2013, the Commission imposed fines totalling over € 27 million on several companies within the Heiploeg-group for a violation of the cartel prohibition. Between 2000 and 2009, Heiploeg and its main competitor frequently contacted one another and agreed on, among other things, sales prices, purchase prices and market sharing. One of the directors within the Heiploeg group, the appellant in this case, was very closely involved until at least his resignation as a director in 2004. After the shrimp company was put into liquidation, the liquidators filed proceedings to hold the director liable for damages on behalf of the company. They argue the director can be held personally liable for a serious reproach as he was not only aware of the cartel arrangements, but was in fact the driving force behind them. As Article 101 TFEU – unlike Dutch law – does not allow for personal fines but only fines to be imposed on the undertaking, the director believes that his liability would undermine the purpose and effectiveness of Article 101 TFEU.
The court concludes that the present claim based on the Dutch Civil Code (2:9 BW) and in connection with the liquidation, is separate from the liability for the cartel fine in itself. Moreover, due to his intensive (factual) involvement in the cartel (literally referred to as the “godfather’” of the shrimp business), the director can indeed be held personally liable. The fact that the group had several directors cannot exempt the director from his own liability, the court rules.
As regards the extent of the damage, the director further argued that it should be reduced to the extent that the company has profited from the cartel during the cartel period. The court rejects this argument and holds that a cartel is not necessarily advantageous for the participating undertakings and that no concrete evidence was provided to support this. The argument that the company would not have suffered any damages since the cartel fine had not (yet) been paid is also dismissed. The Court of Appeal also rejected the director’s other defences relating to the forfeiture of rights, the extension of the limitation period, a reduction of the damages payable, the unlawfulness of the previous prejudgment attachment and the ‘unwillingness’ of the liquidators to reach an amicable settlement.
However, the court does rule that the director cannot be held liable for the continuation of the cartel after he resigned as a director (2005-2009), as this is the own responsibility of the succeeding directors. On balance, the court upheld the claim of over € 13 million.
Court of Appeal confirms applicability of Dutch law and validity of assignments in Aircargo cartel damages case
Amsterdam Court of Appeal, judgment of 22 November 2022
After the Amsterdam Court of Appeal issued an interlocutory judgement on 6 July 2021 regarding the applicability of Dutch law to SCC and Equilib’s damages claims against airlines that participated in the Aircargo cartel (see Competition Flashback Q3 2022), the court is now ruling on the validity of the assignments to the claim vehicles.
Before answering this question, the court addresses some separate issues related to some changed circumstances since the last interlocutory judgment. For example, the court confirmed that SCC correctly argued that the airlines violated the duty to tell the truth under Section 21 of the Dutch Code of Civil Procedure by denying that the cartel had a global dimension, whereas this appeared evident from the subsequently published non-confidential version of the Commission’s infringement decision. However, since the Commission’s press release already mentioned the existence of a worldwide cartel, the assertions of the airlines did not lead the court astray and no consequences need to be drawn from them, according to the court.
Furthermore, the court briefly discusses the earlier judgment of the CJEU in this case in response to preliminary questions referred. From that judgment it follows that the Dutch court is allowed to adjudicate claims for damages that relate to certain flights between a Member State and third countries (such as Switzerland) and flights that were not included in the Commission’s fining decision due to a temporal lack of jurisdiction. Although this substantive issue lies before the court of first instance, the court of appeal does emphasise that its conclusion on the applicability of Dutch law also applies to these (stand-alone) claims, as well as to the lingering effects of the follow-on claims. Finally, the court concludes that the assignments are valid under Dutch law.
ACM advises on a maximum of three national radiofrequencies per media company
ACM, opinion of 14 November 2022; Trade & Industry Appeals Tribunal, judgment of 20 December 2022
In the context of the upcoming auction of radiofrequencies for national radio stations, the ACM issued an opinion in November on the sustainability of current licensing conditions and the level playing field in the radio market(s).
The nine available national FM-frequency lots are currently in the hands of nine commercial stations, namely Sky Radio, Radio 538, Radio Veronica and Radio 10 (all belonging to Talpa), SLAM! and 100%NL as part of RadioCorp, QMusic, BNR Nieuwsradio and Sublime. In 2021, the Minister of Economic Affairs and Climate Policy decided to renew these licenses. Following an appeal by Kink FM against this renewal decision, the Trade and Industry Appeals Tribunal ruled that the Minister must put the radiofrequencies up for auction as of 1 September 2023.
Five of the nine stations are currently subjected to certain restrictions. Radio Veronica, SLAM!, 100%NL, BNR Nieuwsradio and Sublime have to take into account certain requirements regarding the content of their broadcasts (for example: mainly news/classical music). Moreover, based on current conditions, a commercial license holder may not hold more than four national FM-frequencies (the so-called usage restriction).
Partly based on previous investigations, the ACM foresees competition risks due to the maximum of four frequencies per entity. With a market share of 35,2%, Talpa Radio enjoys a strong position on the radio listening market (including both FM and DAB+), according to the ACM. Moreover, the ACM notes that Talpa Radio currently operates three of the four unrestricted radio stations, which are generally more profitable than restricted radio stations. As it is relatively easy for consumers to switch to another radio station, this high level of concentration is particularly problematic for advertisers, according to the ACM. In its view, this is especially so considering that Talpa Radio, RadioCorp and Sublime jointly sell their advertising space through media company One Media Sales (“OMS”). Earlier, the ACM already investigated a potential abuse of dominance by OMS in the radio advertising market. This was eventually settled with a commitment decision.
According to the ACM, marketing only two restricted and seven unrestricted frequency lots will offer providers more opportunities to acquire listeners (and subsequently: attract advertisers). The ACM also urges the Ministry to tighten the usage restriction from four to a maximum of only three frequency lots owned by one entity. In its view, this will prevent the restriction of effective competition in the radio listening and advertising market.
ACM may not require an undertaking to point consumers to existence of infringement
Rotterdam District Court, judgment of 4 October 2022
The Rotterdam District Court recently underlined that an undertaking on which a fine is imposed due to an infringement of consumer protection law does not have to actively inform its customers that it has committed an infringement. This summer, the ACM imposed an order subject to a penalty on an auction website for the imposition of unfair trading terms and maintaining an aggressive commercial practice. Subscribers to the auction website could not cancel their subscription online and the membership was tacitly renewed for another year after it expired, automatically locking consumers in for another year. To prevent so-called ‘invalid’ cancellations, the auction provider also sent letters to these subscribers, threatening with a fine of € 495. The Rotterdam District Court endorsed the ACM’s view that such practices were unreasonable and led consumers to take a decision they would otherwise not have taken.
The court did determine that the (information) requirements imposed by the ACM were too far-reaching. According to the court, it would be disproportionate to force the undertaking to explicitly inform its customers that it had committed an infringement. According to the court, sending customers the new general terms and conditions is sufficient.
Energy companies offer commitments to ACM to adjust sustainability claims
ACM, decisions of 20 September 2022 (date of publication: 10 October 2022)
In the spring of 2021, the ACM launched several investigations into potentially misleading sustainability claims, including in the energy sector. The ACM took a closer look at the sustainability claims of ten energy suppliers with the largest share in the small-business market. The investigation revealed that Vattenfall and Greenchoice presented themselves as sustainable by using certain comparisons without specifying what they were comparing themselves to. They also used different terms such as ‘green gas’ that did not correspond to the product offered. As a result of the investigation, both energy suppliers undertake to adjust the sustainability claims or to stop using them. The ACM has now declared these commitments binding.
These are the third and fourth commitment decisions in which the ACM explicitly analyses a sustainability claim based on its Guidelines on Sustainability Claims (read about the earlier commitments of H&M and Decathlon in our Competition Flashback Q3 2022 or our recent blog on developments in consumer protection law).
Court endorses two-step test for distinction between exercise of public powers and an economic activity
Rotterdam District Court, judgment of 10 November 2022
In its ruling of 10 November 2022, the Rotterdam District Court confirmed that the Dutch Land Registry Office is not required to offer its updated Klic-viewer software against payment. The Klic-viewer is a digital information system that allows parties wishing to perform excavation work to view the location of cables and pipes in order to prevent any excavation damage. Based on the Dutch Public Enterprises (Market Activities) Act (in Dutch: Wet Markt & Overheid,“Wet M&O”), an administrative body must charge at least the integral costs of the service when performing an economic activity. In contrast, when the governing body exercises its public powers, this does not constitute an economic activity.
Although it is no longer disputed that offering an information system is part of the performance of the Land Registry’s statutory duties, parties competing with the Klic-Viewer argue that its further development should be regarded as an economic activity. After all, commercial market parties have been offering software with improved functionalities, such as a mobile app and GPS function, against payment for a long time. By now offering similar software for free, the Land Registry squeezes these competitors out of the market, according to the competing providers.
The court follows the ACM’s decision on objection that the operation of the Klic-viewer is directly related to the exercise of public powers legally imposed on the Land Registry. For example, the updated Klic-viewer promotes the accessibility and exchangeability of information as included as an objective in the Land Registry Act. Hence, it does not constitute an economic activity and the Land Registry is subsequently not required to charge the integral costs for this service. Unlike the competing parties argue, and in line with the TenderNed judgment, the ACM therefore rightly did not get to the question of whether the operation of the software can be separated from the public powers. Only when certain activities of a public entity do not, as such, form part of the exercise of public powers, it must be assessed whether the activity can be separated from activities that are related to the exercise of those powers. Such was not the case here. Read our previous blog on the Wet M&O here.
For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.
You can reach us via the links below.