MTB / AB and Heineken

On 23 June, the Supreme Court referred the questions for a preliminary ruling announced on 21 April[1] regarding jurisdiction of the Dutch court in the case of Macedonian Thrace Brewery S.A. (“MTB“) versus the Greek Athenian Brewery S.A. (“AB“).[2]

In 2014, AB was fined by Greek competition authority for abusing its dominant position on the Greek beer market. In addition to AB, MTB also brought actions against Dutch company Heineken N.V. (“Heineken“) because it held nearly 100% of the shares in AB’s capital in the relevant period, thereby exerting decisive influence on AB, an argument under substantive competition law.

For the jurisdiction of the Dutch court vis-à-vis AB, MTB invoked Article 8(1) of the Brussels I Regulation Recast[3], which provides that in the event of several defendants, a defendant (AB) can also be summoned to appear before the court of the domicile of a co-defendant (the anchor defendant, Heineken), provided the claims are ‘so closely connected’ that it is expedient to hear and determine them together. AB and Heineken contest that Heineken is liable on the basis of substantive competition law and argue that there is therefore no ‘close connection’, which leads to the District Court’s lack of jurisdiction to rule on the claims against AB.

The question is to what extent the discussion of liability must already be conducted at the jurisdiction stage. The Supreme Court therefore asked two questions, which, briefly put, read as follows:

1. Should the District Court already assume the presumption of decisive influence in the assessment of jurisdiction? and
2. If so, how should the standard formulated in the Kolassa and Universal Music judgments that defences must also play a role in the assessment test be specified? In that case, is it sufficient in the jurisdiction assessment to assume jurisdiction that it cannot be deemed to have been ruled out in advance that there was such decisive influence?

In formulating these questions referred for a preliminary ruling, the Supreme Court seems to want to readily assume jurisdiction, which of course says nothing about that party’s actual liability. This will require a substantive assessment during the proceedings.

[1] Supreme Court 21 April 2023, ECLI:NL:HR:2023:660 (MTB/AB and Heineken).

[2] Supreme Court 23 June 2023, ECLI:NL:HR:2023:965 (MTB/AB and Heineken).

[3] 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 (recast) (“Brussels I Regulation Recast”).

On 6 July 2022, the CMA announced in a press release that it is investigating Amazon.com, Inc. (“Amazon”) over concerns that practices affecting sellers on its UK Marketplace may be anti-competitive.[1] The CMA’s investigation will consider whether Amazon has a dominant position in the UK and whether it is abusing that position and distorting competition by giving an unfair advantage to its own retail business or sellers that use its services, compared to other third-party sellers on the Amazon UK Marketplace. More specific, the investigation concerns the way that non-public third-party seller data may be used within Amazon’s retail business, how Amazon sets criteria selecting which product offer is placed within the ‘Buy Box’ and which sellers can list products under Amazon’s ‘Prime label’ on its Marketplace in the UK. This investigation follows a current European Commission probe looking into similar concerns.[2]

[1] Press release CMA of 6 July 2022: ‘CMA investigates Amazon over suspected anti-competitive practices’.

[2] EC press release of 14 July 2022: ‘Antitrust: Commission seeks feedback on commitments offered by Amazon concerning marketplace seller data and access to Buy Box and Prime’.

On 14 June 2022, the CAT rendered a judgment in the case between Meta Platforms, Inc. (“Meta”) and the Competition and Markets Authority (“CMA”).[1] In December 2021 Meta launched an appeal against the CMA’s decision that Meta’s acquisition of Giphy Inc. (“Giphy”) would lead to a substantial lessening of competition.[2] Following an in-depth investigation, the CMA had found that Meta’s purchase of Giphy would reduce competition between social media platforms and had already removed Giphy as a potential challenger in the display advertising market in the UK. The CMA’s decision required Meta to sell Giphy to a purchaser approved by the CMA.

In its judgment on the case, the Tribunal upheld the CMA’s decision on 5 of the 6 challenged grounds. More specific, the Tribunal stated “we have no hesitation in concluding that the decision made by the CMA was one that it was entitled to make”. Thus was concluded that the merger between Meta and Giphy substantially reduced dynamic competition.

[1] Competition Appeal Tribunal, 14 June 2022, Case 1429/4/12/21 (Meta Platforms Inc/CMA).

[2] Initial enforcement order CMA, 9 June 2020.

On 26 May 2022, the Competition and Markets Authority (“CMA”) announced in a press release that it is investigating whether Google had broken the law by restricting competition in the digital advertising technology market.[1] This is the CMA’s second investigation into Google’s practices in ad tech, previously the CMA started an investigation into Google and Meta’s “Jedi Blue” agreement.[2] Both investigations concern Google’s advertising technology intermediation (“ad tech stack”): the complex set of services which facilitate the sale of online advertising space between sellers and buyers. Google has strong positions at various levels of the ad tech stack and charges fees to both sellers and buyers of online advertising space. The CMA examines key parts of the ad tech stack in which Google owns the largest service provider and assesses whether Google’s practices in these parts may distort competition.

Furthermore, there are concerns that Google illegally favours its own services, as Andrea Coscelli, CMA’s Chief Executive stated “We’re worried that Google may be using its position in ad tech to favour its own services to the detriment of its rivals, of its customers and ultimately of consumers.”

[1] Press release CMA of 26 May 2022: ‘Google probed over potential abuse of dominance in ad tech’.

[2] Press release CMA of 11 March 2022: ‘CMA investigates Google and Meta over ad tech concerns’.

In June 2022, the Bundeskartellamt started an investigation into alleged anti-competitive conduct by Google on its Google Maps Platform. Through Google Maps, users can not only navigate, but also have access to the locations such as shops, restaurants and hotels. Yet, it is not possible to integration Google Maps with other map services. The German competition authority launched an investigation into this conduct, and will be examining whether the impossibility of combining Google Maps with alternative map services constitutes abusive conduct. In January 2022, the German competition authority marked Google as being of paramount significance for competition across markets, based on article 19a of the German Competition Act. Because of this, the German competition authority will have more competences in its research into Google Maps.[1]

[1] ‘Proceeding against Google for possible anti-competitive restrictions of map services (Google Maps Platform)’, 21-06-2022, website Bundeskartellamt.

On 14 June 2022, the Bundeskartellamt has initiated a proceeding against Apple for reason of Apple’s App Tracking Transparency Framework and tracking rules. The Bundeskartellamt has reasonable suspicion that Apple’s rules allow the company favor to its own services by applying the rules to third parties only while exempting itself from being subject to these rules.

This proceeding is subsequent to an earlier proceeding against Apple on 21 Juni 2021, which focused on whether Apple is of paramount significance across markets pursuant to Section 19a(1) of the German Competition Act. The decision is yet to be concluded. This proceeding is based on Section 19a(2) if the German Competition Act and article 102 TFEU. [1]

[1] ‘Bundeskartellamt reviews Apple’s tracking rules for third-party apps’, 14-06-2022, website Bundeskartellamt.

Shortly thereafter, on 11 June 2022, the ACM announced that the discussion with Apple had ended because Apple’s payment systems now satisfied the requirements set by the ACM.[1] Apple now allows dating apps to offer alternative payment methods. Apple still had to pay the penalties subject to non-compliance imposed in the amount of EUR 50 million.

[1] ‘ACM: Apple changes unfair conditions, allows alternative payment methods in dating apps’, 11 juni 2022, website ACM.

On 4 May 2022, the ACM announced to various media that it was conducting a preliminary investigation into Google.[1] The reason was a complaint from Match Group, the parent company of dating app Tinder. Match Group complained that Google was abusing its dominant position by not accepting any payment system in its download store other than that of Google. In addition, app providers were no longer allowed to refer to alternative payment options. The ACM would investigate the complaint. These are not isolated complaints. The ACM has already imposed penalties subject to non-compliance for EUR 50 million on Google’s competitor Apple because of unauthorised payment rules when using the app store. In response, Apple made proposals to change the system.[2] In May, Google emphasised to the media that its system was different from Apple’s, because it is possible to download apps and make payments in the Android environment via other app stores.

[1] ‘ACM starts preliminary investigation into Google after complaint about abuse of power’, NOS, 4 May 2022; ‘ACM investigates Google app store for possible abuse of power’, RTL Nieuws, 4 May 2022; ‘ACM to examine Google for abuse of power in Play Store’, De Telegraaf, 4 May 2022.

[2] ‘ACM assesses Apple’s modified proposal on terms and conditions for dating apps’, 28 March 2022, ACM website.

On 25 May 2022, the Amsterdam District Court rendered an interim judgment in a case initiated by Macedonian Thrace brewery S.A. (“MTB“) against Heineken N.V. and its Greek subsidiary Athenian Brewery S.A. (together “Heineken“).[1] In September 2014, the Greek competition authority established that Heineken had abused its dominant position on the Greek beer market by excluding main competitors from the distribution chain as much as possible. MTB is a competitor seeking compensation for the damage. The District Court has already rendered previous interlocutory judgments in these proceedings, which were discussed in Q (2019-2 and 2021-1).

The District Court discussed three subjects. Firstly, the District Court found that Greek law applies, but this was not in dispute between the parties. The parties do have a difference of opinion on the question of whether the claim had become time-barred under Greek law, which was the second subject. The District Court merely provided a preliminary finding because it had not yet established that the alleged conduct had taken place. It based that finding on opinions of Greek professors submitted by the parties. The District Court concluded that the limitation period under Greek law does not commence until the unlawful act has ended and concurred with the infringement period established in the decision. Thirdly, the question was whether the court is bound by the decision of the Greek competition authority. Relevant in this respect is the interpretation of a Greek statutory provision. The District Court usually assesses this on the basis of the parties’ assertions, but here the Court wanted to consult an expert from the International Legal Institute. The parties will be given the opportunity to comment on the announced appointment of experts and the proposed questions to the ILI.

[1] Amsterdam District Court 25 May 2022, ECLI:NL:RBAMS:2022:2866.

On 24 May 2022, the Amsterdam Court of Appeal rendered a final judgment in a case between the interest group Associated Business Music Distributors and six music distributors[1] (together “ABMD et al.“) and the Buma and Stemra foundations (“Buma/Stemra“).[2] Buma/Stemra [Copyright Office for Musical Compositions] is the Dutch collective management organisation for music licences. ABMD et al. asserted that in licensing music to be played for business purposes, Buma/Stemra abused its dominant economic position[3] because it applies different licence conditions for its members than for streaming services. The Court of Appeal concurred with this assertion. Firstly, it established that Buma/Stemra holds a dominant position on the copyright licensing market for making music available to be played for business purposes. Secondly, the Court of Appeal established that Buma/Stemra did indeed apply different conditions (i.e.: rates) for the use of music by streaming services and for classic music distributors. Thirdly, the Court of Appeal qualified this as abuse, which may harm the distributors’ competitive position. As a result, Buma/Stemra is acting unlawfully vis-à-vis the AMD members. Buma must immediately take action to eliminate the inequality and Buma/Stemra must compensate all damage suffered. The amount of the damage will be determined in further proceedings, the follow-up proceedings for the determination of damages.

[1] BCM Music Systems B.V., DJ-Matic B.V., Easys Horeca B.V., PB Sound B.V., The Music Marketeers B.V. en Xenox Music & Media B.V.

[2] Amsterdam Court of Appeal 24 May 2022, ECLI:NL:GHAMS:2022:1512.

[3] Article 24 of the Competition Act and 102(c) TFEU.