On 24 November 2020, the European Parliament approved the ‘Directive on representative actions for the protection of the collective interests of consumers’. ^[1]Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing … Continue reading The Directive is part of the New Deal for Consumers aimed at strengthening European consumer rights and their enforcement. This covers rights arising from European regulations and directives on matters such as unfair commercial practices, tourism, product safety, energy, financial services, telecommunications, product liability and data protection.

Member States have from 24 December 2020 until 25 December 2022 at the latest to adapt their legislation insofar as they do not yet comply with the Directive. The new national provisions should then be applied as from 25 June 2023 to representative actions brought on or after 25 June 2023.

Member States must provide for an opt-in or opt-out mechanism, or a combination of the two. They must also ensure that individual consumers who are not habitually resident in the Member State of the court or administrative authority before which a representative action has been brought are required to explicitly agree to be represented in that representative action. This means that an opt-in mechanism must in any event apply to consumers in this category.

Furthermore, Member States have to designate competent authorities that can institute representative actions. Member States are also required to ensure that representative actions can be brought before their District Courts or administrative authorities by competent authorities designated in another Member State for such representative actions.

Five aluminium forging companies and ten of their employees have been fined by the Bundeskartellamt for a total amount of approximately € 175 million. The companies were found to be in general agreement that their respective procurement costs and costs increases would be passed on to their customers. The companies that were fined are OTTO FUCHS Beteiligungen KG, Leiter Group GmbH & Co KG, Strojmetal Aluminium Forging GmbH, Presswerk Krefeld GmbH & Co KG and Bharat Forge Aluminiumtechnik GmbH. The company Hirschvogel Aluminium GmbH filed a leniency application that triggered the investigation and was therefore spared a fine. ^[1]Press release of the Bundeskartellamt of 23 December 2020, ‘Fines imposed on aluminium forging companies on account of anti-competitive agreements’.

In a press release entitled “Review of 2020”, the Bundeskartellamt reported that the number of leniency applications was decreasing due to a rise in private damages proceedings. The Bundeskartellamt is therefore exploring innovative investigation methods, such as market screening, and will also expand the range of possibilities offered by their digital anonymous whistle-blowing system. In 2020, 13 companies made use of the leniency programme to inform the Bundeskartellamt about infringements in their sector. ^[1]Press release of the Bundeskartellamt of 29 December 2020, ‘Review of 2020’.

On 10 November 2020, the European Commission sent a Statement of Objections to Amazon for the use of non-public independent seller data, and opened a second investigation into Amazon’s e-commerce business practices. The Commission disclosed the fact that it takes issue with Amazon systematically relying on non-public business data of independent sellers who sell on its marketplace, to the benefit of Amazon’s own retail business, which directly competes with these third-party sellers. ^[1]Antitrust: Commission sends Statement of Objections to Amazon for the use of non-public independent seller data and opens second investigation into its e-commerce business practices, 10 November 2020.

On 7 October 2020, the European Commission disclosed that it had accepted commitments by Broadcom to ensure competition in chipset markets for modems and set-top boxes. Broadcom customarily made agreements containing exclusivity or quasi-exclusivity arrangements and/or leveraging provisions concerning specific technology; so-called Systems-on-a-Chip, for TV set-top boxes and internet modems. It has now undertaken to suspend all existing agreements and to refrain from entering into new agreements containing such terms. The commitments are binding for seven years vis-à-vis all device manufacturers and include products not covered by the interim measures decision that the Commission adopted in October 2019. ^[1]Antitrust: Commission accepts commitments by Broadcom to ensure competition in chipset markets for modems and set-top boxes, 7 October 2020.

On 6 October 2020, the European Commission disclosed that it had sent a Statement of Objections to Conserve Italia Soc. Coop. Agricola and its subsidiary Conserves France SA for participation in the canned vegetables cartel. In its Statement of Objections, the Commission informed the companies of its preliminary view that they have breached EU antitrust rules by colluding to distort competition through horizontal price fixing, market sharing and allocating customers for the supply of certain types of canned vegetables within the European Economic Area. ^[1]Antitrust: Commission sends Statement of Objections to Conserve Italia for participation in canned vegetables cartel, 5 October 2020.

This is the next chapter in the Commission’s investigation into the canned food market, which has already resulted in a settlement decision against three other manufacturers, Bonduelle, Coroos and Group CECAB, which admitted their involvement in the cartel and received a total fine of € 31.6 million. On 16 December 2020, the Commission published a non-confidential version of this decision. ^[2]Decision of the European Commission of 27 September 2019, Case AT.40127 – Canned Vegetables.

At an EU General Court hearing on 22 October 2020, Nichicon Corp, a Japanese capacitor manufacturer, argued that the level of the fine imposed on it by the European Commission (€ 7.29 million) was disproportionate, and that sufficient proof of (the extent of) its involvement in the cartel was lacking. The fine stems from a 2018 European Commission decision in which eight companies were fined for their involvement in a cartel between aluminium and tantalum electrolytic capacitors from Japan. The Commission had relied upon a leniency statement of a competitor of Nichicon Corp as proof of its involvement in the cartel. According to Nichicon Corp, such statements cannot be relied upon because competitor companies might be biased against other (suspected) cartel members with a view to the leniency they might receive. The Commission argued that there was no reason to assume that leniency statements would be biased or that a company would lie. That would not be in the company’s interest, because, if the Commission were to find out, the leniency might be denied as a result. Nichicon Corp further contested the extent of its involvement, saying that it had been held liable for meetings in which it did not participate, as well as that (its involvement in) the cartel had no clear link with the EEA. The Commission countered by saying that it was sufficient that it had shown that there was a “single and continuous infringement” which also covered the production in Europe. As to the level of the fine, Nichicon Corp argued that the fine was disproportionate compared to the level of fines in other jurisdictions for the same conduct, but the Commission took the view that no principle applies in this case to the effect that a person/company should not be fined twice. ^[1]Nichicon v. Commission T-342/18.

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.