On 12 January, the Court of Justice rendered its judgment in the proceedings started by HSBC Holding plc, HSBC Bank plc, HSBC Continental Europe and supported by the banks Crédit Agricole and JP Morgan Bank against the European Commission in light of HSBC’s involvement in the Euribor cartel.[1] HSBC challenged the Commission’s finding that it took part in a cartel relating to the Euribor benchmark and it challenged the General Court’s decision to dismiss HSBC’s action. The Court of Justice acknowledged that the General Court could not dismiss HSBC’s action and said that the General Court made several errors of law, but upheld the finding that HSBC did participate in the cartel.

[1] EUCJ 12 January 2023, ECLI:EU:C:2023:11 (HSBC/Commission).

On 5 January, the full text of a decision of the General Court in the appeal of British Airways plc against the European Commission on the airfreight cartel was published.[1] The European Commission fined British Airways in 2010 for its role in the airfreight cartel, but the General Court annulled this part of the Commission’s decision in 2015. British Airways received back the amount paid as a fine plus a ‘guaranteed return’. According to British Airways, it has also the right to receive an amount for default interest of more than EUR 21 million and compound interest. The Commission rejected this request in a first letter and confirmed its rejection in a second letter. British Airways requested to annul this decision, but now the Gereral Court decided that the application for its annulment was too late. It did not follow British Airways’ arguments that the limitation period started at the date of the second letter, since the second letter was only a confirmation of the first. The applicable for annulment is therefore found inadmissible.

[1] General Court 22 December 2022, ECLI:EU:T;2022:863 (British Airways/European Commission).

Trucks

On 7 June, a hearing was held in the second group of cases relating to the truck cartel, including Stichting Trucks Cartel versus DAF, MAN,Volvo/Renault, Iveco, Daimler and Scania. During the hearing, four topics were discussed: the scope and basis of the claims, the assignment agreements, the indirect buyers (and the term ‘passing-on’) and the applicable law. At the hearing, the District Court announced its intention to ask questions about the applicable law, because it was not entirely certain about its own judgment on applicable law in the first group of cases. The District Court will render a judgment on 13 September 2023 with its intention to ask questions for a preliminary ruling, after which the parties can respond. The District Court intends to render a judgment with a decision on this intention on 8 November 2023.

On 30 June 2022, the Commission announced in a press release that it is inviting feedback on the performance of the EU Regulations which lay out the procedures for the application of EU competition rules (Regulation 1/2003 and Regulation 773/2004).[1] While the Commission’s enforcement action has adapted to evolving markets and new technologies, the procedural antitrust framework has remained largely the same for almost 20 years. As Margrethe Vestager, Executive Vice-President in charge of competition policy, said: “Effective enforcement of EU antitrust rules is crucial to ensure that markets perform at their best. For almost two decades, the current procedural antitrust regulations have served us well. But in light of the challenges brought about by the digitisation of our economy, there may well be certain areas where improvements are possible or needed. Now is the time to take stock of the gained experience to ensure that the current rules remain up to date.”

In addition to the announced public consultation, the evaluation will involve an expert survey in the framework of an external evaluation support study, one or more stakeholder workshops as well as a targeted consultation with national competition authorities. The results of the evaluation exercise will be summarized by the Commission in a Staff Working Document that is planned to be published in the second quarter of 2024.

[1] EC press release 30 June 2022, ‘Antitrust: Commission seeks feedback on performance of EU antitrust enforcement framework’.

On 30 March 2022, the Court of First Instance rendered judgment in the case of the airlines Martinair, KLM, Air Canada, Cargolux, Air France-KLM, Japan Airlines, British Airways, Lufthansa, Cathay Pacific, SAS Cargo Group, Latam Airlines Group, Lan Cargo and Singapore Airlines versus the European Commission in response to the Commission’s decision regarding the air cargo cartel.^[1]General Court of the European Union, 30 March 2022, cases T-323/17, T-324/17, T-325/17, T-326/17, T-334/17, T-338/17, T-340/17, T-341/17, T-342/17, T-343/17, T-344/17 and T-350/17 (Martinair Holland … Continue reading The Court of First Instance dismissed the appeals of Martinair, KLM, Cargolux, Air France-KLM, Lufthansa and Singapore Airlines, but partially quashed the European Commission’s decision in so far as it pertains to the other airlines.

The Court of First Instance partially quashed its decision with regard to Japan Airlines, Air Canada, British Airways, Cathay Pacific Airways, SAS Cargo Group, Latam Airlines and Lan Cargo. The quashing pertained to the part of the decision to the extent it established that the aforementioned companies also participated in the infringement in so far as this pertained to refusing to pay commission on surcharges.

On 2 February 2022, the Court of First Instance dismissed Scania‘s appeal against the European Commission‘s decision concerning the truck cartel.^[1]General Court of the European Union, 2 February 2022, case T-799/17 (Scania v Commission), see also press release no. 20/22, 2 February 2022. On 27 September 2017, the European Commission had taken a decision in which it established that Scania was part of the truck cartel for medium and heavy trucks within the EEA from January 1997 to January 2011 and in which it imposed a fine of EUR 880.52 million on Scania for this. The Commission had already imposed a fine on other cartelists on 19 July 2016 following a settlement. Because Scania did not want to participate in the settlement, the Commission reached a separate decision in 2017. Scania appealed against this and argued that it had not concluded an agreement with other manufacturers with regard to pricing, and that it had also not colluded to delay the introduction of new emission standards. The Court of First Instance confirmed the European Commission’s findings. Scania appealed this decision to the Court of Justice on 8 April 2022.

On 26 January 2022, the Court of First Instance announced that it had ruled that the European Commission had wrongly imposed a fine of EUR 1.06 billion on Intel in 2009 for abuse of a dominant position on the global market for x86 processors.^[1]General Court of the European Union, 26 January 2022, case T-286/09 RENV (Intel v Commission), see also press release no 16/22, 26 January 2022. According to the Commission, the abuse consisted of Intel (i) paying customers to postpone the sale of products with competing processors (the so-called “naked restrictions“) and (ii) gave high discounts to a large retailer and four manufacturers of computers if they exclusively sold computers with x86 processors from Intel. After the European Commission imposed the fine in 2009, Intel first appealed to the Court of First Instance (judgment in 2014) and then to the Court of Justice. In 2017, the Court of Justice ruled that the Court of First Instance had not properly applied the law and referred the case back. Now the Court of First Instance held that its decision in 2014 had been “incomplete” and that the conditional discounts under (ii) required a different assessment, in accordance with the criteria prescribed by the Court of Justice. The Court of First Instance concluded that the Commission had not imposed the correct test. Even if the basis of “naked restrictions” remained intact, the Court of First Instance nevertheless cancelled the fine as a whole, because it did not consider itself competent to determine which part of the penalty only pertained to the “naked restrictions”.

On 25 January 2022, the European Commission re-adopted a decision against Telefónica, S.A. and Pharol SGPS, S.A. (previously Portugal Telecom SGPS) and fined the companies 79,040,000 euros for entering into a non-compete agreement.^[1]Press release of the European Commission of 25 January 2022, ‘Antitrust: Commission re-adopts decision and fines Telefónica and Pharol (formerly Portugal Telecom) €79,040,000 for entering … Continue reading In 2013, the Commission took the view that the clause not to compete with each other on the Iberian telecommunications market from the end of September 2010 amounted to a market-sharing agreement with the object of restricting competition in the internal market and therefore breached EU antitrust rules. In June 2016, the General Court found that the Commission should have examined the parties’ arguments that there was no potential competition between them in certain markets and that those markets should have been excluded when calculating the amount of the fines (cases T-216/13 and T-208/13). In the new decision, the Commission takes full account of the General Court’s judgment.

On 24 February 2022, Advocate General Medina gave an opinion in a case of the German region Landkreis Northeim versus truck manufacturers Daimler, Iveco and MAN with regard to the truck cartel.^[1]AG Medina, 24 February 2022, case C-588/20 (Landkreis Northeim v Daimler et al).In German proceedings, the German region also sought compensation of damage for two waste vehicles, while the truck manufacturers asserted that these were not covered by the decision of the European Commission of 19 July 2016^[2]Decision of the European Commission of 19 July 2016. and it has therefore not been established for these trucks that cartel arrangements were made for this. The question currently before the Court of Justice for a preliminary ruling is whether, in addition to ‘ordinary’ trucks, also special purpose vehicles, such as waste vehicles and fire department vehicles, are covered by the decision. The Advocate General concludes that all specialised vehicles except vehicles for military purposes are covered by the decision of the European Commission. If the Court of Justice follows this opinion, damages can also be claimed for these special purpose trucks.

On 10 December 2021, the Commission published the full text of its March 2017 decision on the airfreight sector.^[1] The Commission imposed fines of €776 million on 11 cargo airlines (Air Canada, Air France-KLM, British Airways, Cargolux, Cathay Pacific Airways, Japan Airlines, LAN Chile, Martinair, Qantas, SAS and Singapore Airlines) for colluding over surcharges and thus operating a price-fixing cartel. We wrote about the decision in Q2017-1.

[1] EC decision of 17 March 2017, Case AT.39258 (Airfreight).