On 23 March 2022, the CMA fined Dar Lighting Ltd – supplier of domestic lighting products – 1.5 million pounds for infringing competition law.^[1]Press release of the CMA of 23 March 2022, ‘Dar Lighting fined after ignoring warnings on restricting discounts’. The CMA found that between 2017 and 2019, the company restricted retailers’ freedom to set their own prices online. The company imposed a minimum selling price on retailers, which prevented them from offering discounts beyond a certain level. This practice, known as resale price maintenance, is illegal, because it can lead to shoppers paying more for products. In two separate warning letters, the CMA alerted the company about this. However, the company did not take sufficient steps to comply with the CMA’s warnings.

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 3 February 2022 the UK antitrust watchdog, the Competition and Markets Authority (CMA), fined several pharmaceutical companies over 35 million pounds for an illegal arrangement in the supply of important National Health Service (NHS) prescription anti-nausea tablets, namely prochlorperazine 3mg dissolvable or ‘buccal’ tablets.^[1]Press release of the CMA of 3 February 2022, ‘CMA fines firms over £35m for illegal arrangement for NHS drug’. Under the arrangement, a competitor was paid not to launch a product and price increases were enabled. From 2013 to 2017, the prices paid by the NHS for prochlorperazine increased by 700%. The CMA found that, from June 2013 to July 2018, Alliance Pharmaceuticals, Focus Pharmaceuticals (now owned by ADVANZ PHARMA Corp., previously owned by the private equity firm Cinven Ltd), and Lexon UK ^[2]The infringement decision is addressed to the following legal entities: (i) Alliance Pharmaceuticals Ltd and Alliance Pharma plc; (ii) Focus Pharmaceuticals Ltd, Focus Pharma Holdings Ltd, Mercury … Continue reading were involved in the arrangement. Another company (Medreich plc) was involved in the arrangement between February 2014 and February 2018. Alliance Pharmaceuticals Ltd is appealing the CMA’s fine decision.

On 23 March 2022, the Bundeskartellamt stated that they would initiate cartel administrative proceedings against medical aids associations for coordinated price increases to the detriment of health insurance companies.^[1]Press release of the Bundeskartellamt of 23 March 2022, ‘Bundeskartellamt initiates proceeding against medical aids associations for coordinated price increases to the detriment of health … Continue reading The associations organised themselves under the “ARGE” umbrella and represent in particular health care supply stores and orthopaedic workshops. According to the Bundeskartellamt, they demanded coordinated price increases for existing supply contracts in the rehabilitation and care sectors, threatened to end certain contracts with health insurance companies and in some cases actually ended them. Because ARGE represents the lion’s share of all suppliers of medical aids for rehabilitation and care on which patients in Germany rely, the proceedings of the Bundeskartellamt are investigating not only potential infringement of the ban on anti-competitive agreements, but also whether there has been an abuse of a dominant position.

On 10 February 2022, civil-engineering companies Maurer SE and Mageba GmbH were fined a total of around 7.3 million euros by the Bundeskartellamt for cartel activity that lasted for several years.^[1]Press release of the Bundeskartellamt of 10 February 2022, ‘Fines imposed on manufacturers of modular expansion joints for bridges involved in a quota cartel‘. The two companies are Germany’s sole manufacturers of modular expansion joints for road bridges. The companies were found to have agreed to fix their market shares in the form of quotas to divide up the market between them. According to the Bundeskartellamt, they also agreed on a uniform price-calculation formula. Bundeskartellamt chief Andreas Mundt stated that the cartel affected an important area of public infrastructure and ultimately investments by federal, state and local government.

In January 2022 Germany’s antitrust watchdog, the Bundeskartellamt, conducted unannounced dawn raids at the German premises of cable manufacturers. On 18 January 2022, cable manufacturers Leoni AG and the Italian Prysmian S.p.A. stated they were visited by the Bundeskartellamt.^[1]According to Mlex, ‘Leoni confirms inspections by antitrust authorities in German cable-cartel probe’, 18 January 2022’; see also Press release of Prysmian of 18 January 2022. Two days later, French cable maker Nexans S.A. said it was also the target of antitrust inspections by the regulator.^[2]According to Mlex, ‘Nexans joins Leoni under German carte suspicion’, 20 January 2022. The searches are said to be part of a new investigation into cable manufacturers that allegedly coordinated the calculation of industry-standard metal surcharges in Germany. The cable manufacturers declared their willingness to cooperate with the Bundeskartellamt. Companies purchasing cables from the undertakings concerned in the investigation might have been harmed by the alleged collusion between manufacturers.

In Q1 of 2022, the ACM ensured whether Apple amended its policy for dating apps in accordance with the conditions imposed by the ACM on Apple in order to prevent possible abuse of a dominant position. In December 2021, the ACM demanded that within two months, Apple amend certain conditions, deemed unreasonable by the ACM, applicable to access to dating app providers to the Dutch App Store.^[1]Press release ACM of 24 December 2021, ‘ACM requires that Apple amend unreasonable App Store conditions’. In addition, Apple had to ensure that dating app providers would be given the opportunity to refer, in their app, to payment options outside the app.

It became clear in January 2022 that Apple had still not introduced this latter possibility, and it therefore incurred the first penalty of EUR 5 million.^[2]Press release ACM of 24 January 2022, ‘Apple does not meet the requirements of the ACM’. Next, in February 2022, Apple proposed to the ACM that it would amend the policy in such a way that dating app providers would have to make an entirely new app to use an alternative payment system. The ACM ruled that it would be unreasonable to ask the dating app providers to modify their existing apps, and did not approve the proposal.^[3]Press release ACM or 14 February 2022, ‘ACM: Creation of new app is unnecessary and unreasonable condition for Apple to impose on dating app providers’.

On 27 March, Apple subsequently amended the proposal, which the ACM will now assess and, if approved, will submit to market parties.^[4]Press release ACM or 28 March 2022, ‘ACM assesses Apple’s modified proposal on terms and conditions for dating apps’. However, Apple has meanwhile forfeited the maximum penalty of 50 million euros.

On 16 December 2021, the Competition and Markets Authority (“CMA”) issued a statement of objections to Dar Lighting Limited (Dar),[1] which supplies domestic lighting products. According to a provisional conclusion of the CMA, between 2017 and 2019, Dar restricted retailers’ freedom to set their own prices online between 2017 and 2019, requiring them to sell at – or above – a minimum price and so preventing them from offering discounts. The CMA’s findings are provisional and no final decision has been made about whether there has been a breach of competition law.

[1] Press release CMA of 16 December 2021, ‘CMA provisionally finds lighting firm illegally banned discounts’

On 22 December 2021, the Bundeskartellamt published its review of 2021, which explains the actions it took in that year.[1] First, it initiated new proceedings against Amazon, Apple, Google and Meta (formerly Facebook). This was partly because the Bundeskartellamt had improved its abuse control in early 2021, enabling it to proceed more quickly and effectively against anti-competitive practices by large digital corporations.

Second, it imposed fines of approximately EUR 105 million for illegal cartel agreements. The fines were imposed on special steel producers and steel forging companies and for vertical price-fixing agreements for musical instruments, school bags and consumer electronics. Nine companies informed the Authority about infringements in their sector using the Authority’s leniency programme. Further tip-offs were received from other sources.

Third, although the scope of application of merger control was limited by a legislative amendment in early 2021, the Bundeskartellamt examined approximately 1,000 corporate mergers. Of these cartels, 14 were closely examined in the so-called second phase. Three of these were cleared without obligations. One merger was cleared with obligations, which meant that EDEKA was only allowed to take over some of the Real stores.

Finally, the Competition Register for Public Procurement was launched at the Bundeskartellamt in 2021. The Competition Register provides over 30,000 public contracting authorities in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.

[1]Press release of Bundeskartellamt of 22 December 2021, ‘Bundeskartellamt – Review of 2021′.

The Bundeskartellamt has imposed a fine totalling approximately 7 million euros on Bose GmbH, which is based in Friedrichsdorf, on account of resale price maintenance.[1] Bose’s activities in this area mainly focus on the distribution of audio products, especially speakers and headphones. The proceedings were initiated in the context of a request for official assistance from the Austrian competition authority.

Bose’s employees agreed on concerted measures for setting sales prices with the authorised dealers involved. These measures generally pertained to an increase in sales prices, which were also specifically set in some cases. For example, the company intervened on several occasions in which the dealers had deviated from the recommended resale price, prompting the dealers to adjust their conduct accordingly in a number of cases.

[1] Press release of the Bundeskartellamt of 2 December 2021, ‘Bundeskartellamt imposes fine on audio equipment manufacturer Bose’.