On 11 March 2022, the CMA and the European Commission launched parallel probes into the ‘Jedi Blue’ agreement between Google (Google UK Ltd, Google LLC and Alphabet Inc) and Meta (Facebook UK Ltd, Meta Platforms Ireland Ltd and Meta Platforms, Inc.).^[1]Press release of the CMA of 11 March 2022, ‘CMA investigates Google and Meta over ad tech concerns’. The suspicion is that the agreement contributed to the exclusion of ‘header bidding’ ad tech services that were competing with Google’s Open Bidding program. Therefore, the CMA and the European Commission will assess whether the agreement breaches antitrust law. The CMA is also scrutinising Google’s conduct in relation to header bidding services more widely to determine whether the company abused a dominant position and gained an unfair advantage over competitors trying to provide a similar service. Furthermore, US litigation has already uncovered the allegedly anticompetitive deal. In response to the EU and UK probes, both companies stated that the agreement was ‘non-exclusive’ and helped to increase competition in the ad tech market.

On 5 January 2022, the Bundeskartellamt delivered its decision that Alphabet/Google is subject to extensive abuse control by the Bundeskartellamt under the newly introduced Article 19a of the German Competition Act (GWB). This provision grants more powers to the competition authority to deal with large digital platforms.

The Bundeskartellamt has decided that Alphabet/Google is of “paramount significance for competition across markets” within the meaning of Article 19a GWB. Based on this decision, the Bundeskartellamt can now prohibit Alphabet/Google from certain specified anti-competitive practices as set out in the new provision. Google has announced it will not appeal the decision or deny its status under Article 19a, though it has also said that it does not necessarily agree with all the facts on which the Bundeskartellamt based its decision.^[1]Press release Bundeskartellamt of 5 January 2022, ‘Alphabet/Google subject to new abuse control applicable to large digital companies – Bundeskartellamt determines “paramount significance … Continue reading

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.

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.

Spokespersons for Amazon, Booking.com and Apple have expressed criticism on the draft Digital Markets Act which the European Commission revealed in December 2020. The draft prescribes that any platform qualifying as a “gatekeeper” has to comply with certain rules, without exceptions. According to Mlex, the spokespersons for the aforementioned platforms have expressed that the rules would be too rigid and complicated for trying to address specific problems, and “over-inclusive” as not all large platforms can be considered as gatekeepers.[1]

[1] Mlex, ‘Apple, Amazon, Booking.com take shots at Eu’s ‘gatekeeper’ regulation’, 9 February 2021.

On 19 January 2021, the 10^th amendment to the German Competition Act entered into force. A key element of the amendment is the modernisation of the competition authorities’ control of abusive conduct – which is mainly focused on the need for fast and effective action in light of the rapid growth of large digital platforms. The Bundeskartellamt will under the new Act be able to take preventive measures and prohibit conduct such as self-preferencing of a group’s own services or impeding third companies from entering the market by processing data relevant for competition. The traditional abusive control provisions are also modernised and further specified by adding internet-specific criteria and making clear, for example, that access to data is relevant for competition and might lead to market power. Germany is the first to implement such measures; in the EU similar tools are still being discussed.

As to cartel prosecution, the amendment implements the ECN Plus Directive which is in place at EU level. In line with this Directive, companies and their employees will be required in the future to cooperate to a certain extent in establishing the facts of the case. The amendment also includes several new provisions regarding administrative fines and provisions on the leniency programme – which was not yet enshrined in law prior to this amendment.[1]

[1] Press release Bundeskartellamt, ‘Amendment of the German Act against Restraints of Competition’, 19 January 2021.

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 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 … Continue reading

 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]Court of Justice of the European Union, Press Release NO 147/20, 24 November 2020.

Mlex reported ^[1]Mlex, LG Display settles with Iiyama over LCD cartel claim, 30 April 2020. on 20 April 2020 that LG Display had declared that it settled an antitrust claim in 2019 with the Japanese screen maker Iiyama in the aftermath of the liquid-crystal displays cartel. In 2010, the European Commission imposed a fine of EUR 649 million on LG Display, AU Optronics, Chimei Innolux, and others for having engaged in LCD display price-fixing from 2001 to 2006.

According to Mlex, on 5 May 2020, Daimler A.G. argued before the UK High Court in London that Wallenius Wilhelmsen’s data on the operation of the maritime car carriers cartel amounted to a “smoking gun”.^[2]Mlex, Wallenius Wilhelmsen data provides ‘smoking gun’ in car-shipper operations, Daimler tells UK judge In those proceedings,^[3]The case is CL-2018-000572 Daimler AG v MOL (Europe Africa) Ltd and others. Daimler is claiming damages from various shipping companies for their role in the cartel^[4]Commission Decision of 21 February 2018, Case AT.40009 — Maritime Car Carriers, 2018/C 314/09. that we wrote about earlier in Q(2020-1). In its decision of 21 February 2018, the European Commission fined the shipping companies Mitsui O.S.K. Lines, Ltd, MOL (Europe Africa) Ltd, Nissan Motor Car Carrier Co., Ltd, Kawasaki Kisen Kaisha, Ltd, Nippon Yusen Kabushiki Kaisha and various companies affiliated with Wallenius Wilhelmsen Logistics AS, including EUKOR Car Carriers, inc. for € 395 million for their role in the cartel. The maritime car carriers are also under fire from UK car manufacturers in other procedures. For example, Jaguar Land Rover7 and Volvo8 have initiated separate proceedings against the members of the cartel pursuant to the European Commission’s decision.

On 19 June 2020, in the proceedings between Wolseley UK Limited and others v. Fiat Chrysler Automobiles N.V., CNH Industrial N.V., DAF Trucks N.V. and Daimler A.G.9 in the aftermath of the truck cartel, the Competition Appeal Tribunal ordered Daimler A.G. to provide “explanatory guidance” about the Daimler database it had provided to Wolseley in the context of disclosure. This explanatory guidance is furthermore meant to consist of Daimler releasing additional information to make it easier to understand the Daimler database, including the guidance that Daimler has already had to provide to claimants in other truck cartel proceedings.