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 9 Juni 2022, the Bundeskartellamt imposed approximately of 12.5 million euros of fines in total, on Dilliger Hütte (Aktien-Gesellschaft der Dillinger Hüttenwerke) and Hochtief Solutions (Hochtief Solutions AG) for concluding restrictive agreements within the context of award procedures. It is the first time the authority uncovered illegal agreements in which both the contracting party and the bidders participated. The undertakings were involved in both vertical and horizontal bid rigging. The vertical agreement was implemented through measures on the basis of which the representatives of Dilliger Hütte exerted influence over the award procedure. Contracts were thereby either awarded to a Saarland-based industrial construction company or alternatively to Hochtief. In addition to this vertical bid rigging agreement, the representatives of the Saarland-based industrial construction company and of its competitor Hochtief exchanged information about Hochtief’s pricing behavior, which enabled the Saarland-based company to adjust its bids, depending on whether it wished to obtain the contract. The fine imposed on Dillinger Hutte is final. Hochtief, however, has appealed the order imposing the fine and the Bundeskartellamt’s findings on which the decision is based. [1]

[1] ‘Bundeskartellamt/ industrial construction, Fines imposed for concluding agreements in the industrial construction sector’, 9-06-2022, website Bunderkartellamt.

On 4 May 2022, the Bunderkartellamt determined that Meta Platforms Inc. (formerly Facebook) to be of paramount significance for the competition across markets. Meta is known for its services on Facebook as well as its leading position in social media advertising. The Bundeskartellamt concluded that Facebook exploits a social media ecosystem financed by advertisements. As a result of this decision, Meta is subject to special control for the duration of five years after the decision entry into force. Meta has announced not to challenge the decision.[1]

[1] ‘New rules apply to Meta (formerly Facebook) – Bundeskartellamt determines its “paramount significance for competition across markets”’, 04-05-2022, 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 April 20, the Authority Consumer & Market (“ACM”) announced to launch an investigation into a possible cartel in the road furniture sector.[1] To this end, the ACM conducted a raid earlier this month. The ACM suspects that a number of companies had prior contact about the price they would charge in government tenders for road furniture.

[1] Press release ACM of 20 April 2022: ‘ACM investigates possible cartel in road furniture sector’.

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 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.