Competitive Edge: Competition & EU Law February 2021
Written By
Partner
Denmark
I'm a partner and co-head of our international Competition & EU group. I also lead the Competition & EU team in Denmark. I have a particular focus on applying competition & EU law as a tool to achieve specific and measurable business objectives for our clients.
Partner
Netherlands
I am a partner in our NL office, based in The Hague, where I was one of its founding lawyers in 2001.
Keeping you up to date on Competition & EU law developments in Europe and beyond
Welcome to the February edition of Competitive Edge.
This month our main article analyses the possible changes to the EU’s 1997 Market Definition Notice following the recently conducted public consultation by the European Commission. Furthermore, we provide you with an overview of the recent key competition law developments across Europe and beyond with brief updates from our international network.
In focus
New Commission Notice on relevant market likely to be more focussed on digital markets
The 1997 Commission Notice on relevant market for the purpose of Community competition law is likely to be updated, with an increased focus on digital markets. At least, that is to be expected based on the results of the consultation that closed at the end of 2020. The review is likely to address topics like two-sided or multi-sided markets and zero-price services.
Updates from our jurisdictions
EU
Video games sector hit with anti-trust fine for geo-blocking practices
On 20 January 2021, the European Commission fined Valve Corporation, owner of the “Steam” game distribution platform, and five PC video game publishers, namely Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax €7.8 million for breaching antitrust rules through bilateral agreements.
For more information contact Pauline van Sande.
Australia
ACCC shipping cartel investigation comes to a close with fines totalling AUD$83.5 million
On 4 February 2021, the Federal Court of Australia imposed a fine of $24 million on Norwegian shipping company, Wallenius Wilhelmsen Ocean AS (WWO), for its involvement in a criminal cartel with a number of other shipping companies between 2009 and 2012.
This judgment is the last in a series of judgments handed down by the Federal Court of Australia in connection with this long-running criminal cartel investigation, which includes the fine of $25 million which was imposed on Nippon Yusen Kabushiki Kaisha (NYK) in August 2017, and the fine of $34.5 million which was imposed on K-Line in August 2019. The latter remains the largest criminal fine ordered under Australia’s competition laws.
For more information contact Thomas Jones.
Czech Republic
More powers for the Czech competition authority?
Recently, there have been several legislative efforts to extend the scope and powers of the Czech Office for the Protection of Competition (Office). Firstly, it has been proposed to grant the Office access to operational and location data from electronic communications services during investigations of all competition law offences. The second proposal aims at the Office’s control of compliance with the potential mandatory quotas on local food sold in retail stores larger than 400 square meters in the Czech Republic, which itself appears to be a clear breach of EU law, if implemented.
Read more >
For more information contact Vojtech Chloupek.
Denmark
Danish Court upholds decision regarding competition law infringement by Deutz AG and its national distributor in railway sector
The central element of the case was whether Deutz AG (Deutz) and Diesel Motor Nordic A/S (DMN), its national distributor, had infringed competition law by hindering the delivery of unique Deutz-spare parts to the Danish company, Fleco ApS (Fleco), by both refusing to supply spare parts and by entering into an agreement to prevent the import of the spare parts necessary for the renovation of the train engines.
Back in 2013, the Danish Competition Appeals Board (CAB) concluded that the conduct by Deutz constituted an abuse of dominance through Deutz’s refusal to supply. Additionally, the CAB considered the agreement regarding the prevention of the parallel import and passive sales between Deutz and DMN to be anti-competitive.
The decision by CAB was appealed before the Danish Maritime and Commercial High Court (MCC). On 11 January 2021, the MCC confirmed that Deutz had abused its dominant position by consistently and systematically refusing to supply the unique Deutz-spare parts to Fleco. Additionally, MCC confirmed the findings of CAB regarding the anti-competitive nature of the agreement between Deutz and DMN.
Read more >
For more information contact Morten Nissen.
Finland
Court of Justice of the European Union confirms: A bid-rigging infringement ends when the essential characteristics of the contract are concluded with the contracting authority
On 14 January 2021, the Court of Justice of the European Union (CJEU) issued a preliminary ruling relating to a Finnish bid-rigging case stating that a bid-rigging infringement ends on the day the essential characteristics of the contract, in particular the price, are concluded with the contracting authority. The reference of the Finnish Supreme Administrative Court for a preliminary ruling relates to the question of the starting point of the limitation period during which a penalty for that infringement may be imposed.
Read more >
For more information contact Päivi Tammilehto.
France
New FCA’s study on professional bodies in the run-up to ECN+ Directive transposition
While the ECN+ Directive is about to be transposed into French law, which will result in exposing professional bodies to potentially much heavier sanctions than under the current legal framework, the French Competition Authority (FCA) recently published a study on how competition rules apply to these specific bodies. The publication of this study is intended to raise awareness of the professional associations and their members on the importance of complying with competition law and offers practical guidance on practices or activities of professional associations which may be contrary to competition law, as was part of the FCA’s priorities.
Read more >
For more information contact Thomas Oster.
Germany
Broadband development – FCO monitors cooperation between Deutsche Telekom, Vodafone and Telefonica
The German Federal Cartel Office (FCO) will monitor a future broadband development cooperation between Deutsche Telekom AG, Vodafone and Telefonica aimed at closing gaps (so called “grey spots”) in their mobile telecommunication networks. The telecommunications companies are planning a tri-party cooperation after the FCO had intervened against a first planned bilateral cooperation between Deutsche Telekom and Vodafone, citing competition concerns.
Read more >
For more information contact Marcio da Silva Lima.
Hungary
Make sure it's fresh and clear – The HCA’s guidelines on environmental claims
Recent market research shows there is a growing appetite for sustainably manufactured, environmentally friendly products and consumers are more conscious about the footprint of their consumption choices. This shift and the more and more popular use of ‘eco-friendly’ and ‘green’ claims did not go unnoticed by the Hungarian Competition Authority (HCA). This prompted the HCA to issue a set of guidelines with certain aspects businesses should consider, in compliance with Hungarian law, when using environmental claims.
The guidelines’ aim is to promote consumer awareness and to provide ample support in planning and publishing marketing communications to avoid misleading consumers and the potential legal consequences.
Read more >
For more information contact Bettina Kovacses.
Italy
Main Italian Ticket Operator fined €10.9 million for abuse of dominant position
The Italian competition authority (AGCM) fined the CTS Eventim-TicketOne Group €10.9 million for abuse of a dominant position in the Italian market of pop music events ticket sellers. In addition to the fine, the AGCM also required the dominant undertakings to ensure that competing ticket sellers have the possibility to sell, under determined conditions, at least 20% of the total amount of pop and rock music events tickets distributed by the event promoters or ticket sellers bound by the agreements concluded by Eventim-TicketOne.
The Authority ascertained that CTS Eventim through its subsidiary TicketOne – the leading Italian live event ticket seller - put in place a complex exclusive strategy with the double aim of boycotting competing ticket sellers and imposing exclusivity agreements on event promoters.
Read more >
For more information contact Federico Marini Balestra.
Spain
CNMC fines 3 cartels in the solid fuels trading market with €3.5 million
The Spanish Competition authority (CNMC) has imposed a total fine of €3.5 million on six companies for their participation in up to three different cartels involving the exchange of sensitive commercial information, the allocation of customers and the fixing of prices of different types of solid fuels. In addition, five managers of these companies were sanctioned with a total fine of €166,700 for their involvement in the illegal conduct.
According to the CNMC, these anticompetitive practices took place from 1999 to 2018, constituting a single and continuous infringement for almost 20 years.
For more information contact Candela Sotés.
The Netherlands
Revised guidelines of Dutch competition authority confirm more leeway for environmental sustainability initiatives
On 26 January 2021 the Dutch competition authority published its revised draft sustainability guidelines setting out its approach to assessing the compatibility of sustainability initiatives with competition law. With the publication of the first draft guidelines in July 2020, the Dutch competition authority has taken a progressive and leading stance in this European policy debate by offering more leeway for environmental sustainability initiatives (see for more background our earlier blog). The revised draft guidelines are intended as an opening move in order to come to a uniform EU-wide approach in terms of the competition law assessment of sustainability initiatives.
The revised guidelines clarify which agreements will likely benefit from the more flexible interpretation of the competition law rules and they provide more guidance on how the benefits of sustainability agreements can be demonstrated in practice. Interestingly, the revised guidelines confirm - especially for ‘environmental damage agreements’- that benefits generated outside of The Netherlands can in principle be taken into account in the competition law assessment.
The Dutch competition authority reiterates that during the ongoing EU-wide policy debate on this matter, it will not impose fines on companies which apply the revised draft guidelines in good faith. Furthermore, the Dutch competition authority stressed it is open for consultation with companies which are planning to enter in sustainability agreements.
Read more >
For more information contact Piet-Hein Eijssen.
The UK
CMA publishes report into algorithms and their harm on consumers and competition law
The impact algorithms continue to have on market dynamics has been under scrutiny by competition authorities around the world in recent years. On 19 January 2021, the CMA published a report, following its investigation into algorithms and their potential harms to competition law. This article reviews the harms identified by the CMA and discusses the main findings of the report.
Read more >
For more information please contact Peter Willis.
Webinars & Events
GCR Interactive: Telecoms, Media & Technology conference
Bird & Bird is proud to sponsor GCR's virtual Telecom, Media and Technology conference, which will bring together academics, top government enforcers, in-house counsel, economists and private practice lawyers from across the world to debate the latest developments in regulatory models, merger policy and FDI controls in the digital sector.
On 3 March, our Brussels partner Hein Hobbelen will moderate a panel during the session entitled 'The business view'. In this debate, leading in-house counsel will reflect on the insight from previous panels and share how their companies, in the face of stricter regulations, will navigate this new frontier.
The conference will take place on March 2-3. Click here to register. Registration is free for in-house counsel.
ERA - Annual Conference on EU Law in the Pharmaceutical Sector 2021
Bird & Bird Life Sciences partner Marc Martens and Competition Senior Associate Baptist Vleeshouwers will be speaking at the ERA (Academy of European Law) Annual Conference on 4 March 2021. Their session will cover:
Keeping fair competition in the life sciences market in times of Covid-19 and Brexit
- How to foster research and development of future vaccines?
- How to maintain fair competition on the market for vaccines?
- State aid rules
- Patent pools and compulsory licensing in times of Covid-19
- Competition in the internal market after Brexit: impact on medicines and medical devices
Who should attend this event? In-house counsel, lawyers in private practice, lawyers in national ministries and authorities dealing with regulation of the sector.
Click here to see the event programme.
Register to the online event here.
Green Advertising: current challenges and future outlook
Webinar
Thursday 25 March, 10:00 - 11:00 CET
Join Competition associate Ariane Le Strat and other experts in this webinar that will cover the Do’s and Dont's of Green Advertising. Green advertising - an umbrella term for any advertising, claim or other communication related to sustainability, renewable resources, recycling, so called ocean plastics, carbon footprints or similar - is of ever-increasing importance in today’s world.
Consumers are paying attention to the environment and unsurprisingly, many products are advertised with various green claims in an effort to win the consumer’s favour. However, the use of such claims is highly regulated and a lack of compliance can lead to the removal of non-compliant products from the shelves.
In our webinar, we will:
- Give an outlook on European initiatives on green advertising
- Showcase the current legal situation in selected European countries
- Give practical guidance on opposing non-compliant uses by competitors
- Highlight actions of the UK CMA as well as ongoing litigation in France.
Read more about the webinar and see the speakers here.
RSVP at this link.
Bird & Bird news
In February Bird & Bird appointed Dr Saskia King as a Legal Director in our London office. Saskia joined Bird & Bird from the UK Payment Systems Regulator (PSR), where she was a senior lawyer leading the PSR’s first competition investigation in the payments space. Prior to that, Saskia worked for several years at the Competition and Markets Authority, where she was the legal adviser on a broad range of complex antitrust investigations and mergers.
Saskia has over 15 years’ experience in UK and EU competition law and policy, investigations and public law. She brings to Bird & Bird her in-depth understanding of regulators, of carrying out dawn raids and other investigations, and of the application of competition rules to regulated sectors such as payment systems, as well as financial, communications and technology markets more widely. Her insight and expertise will be invaluable to the firm’s clients facing regulators. Read more here.
