On 15 November 2021, the Commission published a letter addressed to car manufacturers Daimler, VW and BMW regarding its decision of 8 July 2021.[1] In that decision, the Commission fined the car manufacturers for illegally discussing certain aspects and topics in relation to the development of SCR-systems used in diesel passenger cars.[2] In the letter now published, the Commission explains that it takes the view that certain other areas of cooperation concerning the same subject matter, which were not included in the Commission decision, are not capable of restricting competition and are not in breach of competition law. The Commission advised the car manufacturers that it therefore saw no reason to further investigate the conduct described in the letter.
[1] Commission Letter of 8 July 2021, AT.40178_8022302_3050_5.
[2] Commission decision of 8 July 2021, Case AT.40178 (Car Emissions).
The Bundeskartellamt has also published new guidelines on the conformity of cooperatives with competition law.[1] The guidelines explain the background, purpose and scope of the prohibition of anti-competitive agreements and outline the possible scope of cooperative activities. According to the president of the Bundeskartellamt, Andreas Mundt, the guidelines are aimed at providing guidance to small and medium-sized cooperatives in particular. The guidelines also consider new forms of digital distribution and cooperation.
[1] Press release Bundeskartellamt of 2 November 2021, ‘Bundeskartellamt publishes guidelines on cooperatives’.
The Bundeskartellamt published new guidelines in Q4 of 2021, namely on its leniency programme and on the setting of fines in cartel proceedings.[1] With the new guidelines the Bundeskartellamt is modernising the way it sets fines, with the turnover achieved from the infringement of competition law remaining the key factor. On the whole, the level of fines will therefore not change significantly. The guidelines also explain the new leniency programme, which was first enshrined in law in early 2021 as part of the 10th amendment to the German Competition Act (the GWB), thus implementing the provisions of the European ECN+ Directive. In revising the supplementary guidelines, the Bundeskartellamt provided specific details on how the proceedings are conducted, on the exercise of its discretionary powers in setting the fine and on the amount of the reduction of the fine.
The amendment lays down a number of criteria for setting the amount of the fine. For example, the turnover achieved with the products or services that were the subject of the anti-competitive agreement, has now been legally enshrined as a criterion. In addition, the precautionary measures taken by a company prior to and after the infringement to prevent and uncover further infringements (compliance) may be taken into consideration under certain conditions. Finally, the Bundeskartellamt’s revised guidelines for the setting of fines give additional focus to the practice of the German courts in that in future a reference value will be determined based on the turnover linked to the infringement and the size of the company.
[1] Press release Bundeskartellamt of 11 October 2021, ‘Bundeskartellamt publishes new guidelines on its leniency programme and the setting of fines’.
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).
On 10 December 2021, the Commission fined the Spanish company Abengoa S.A. and its subsidiary Abengoa Bionenergía S.A. (together ‘Abengoa’) €20 million for participating in a cartel concerning the wholesale price formation mechanism in the European ethanol market.[1] Abengoa admitted its involvement in the cartel and agreed to settle the case. Abengoa was formerly one of the biggest ethanol producers in the EU.
[1] Press release European Commission 10 December 2021 ‘Antitrust: Commission fines former ethanol producer Abengoa €20 million in cartel settlement.’
On 2 December 2021, the Commission issued a press release stating that it completed its cartel investigation into the Foreign Exchange (Forex) spot trading market.[1] The Commission fined five banks, UBS, Barclays, BRS, HSBC and Credit Suisse, a total of €344 million for collusive behaviour of traders in charge of G10 currencies, i.e. ten of the most liquid and widely traded currencies worldwide.[2] This was the third leg of the Commission’s investigation into the Forex market. The first two legs of the investigation were concluded with the adoption of settlement decisions in May 2019.[3] We wrote about the earlier settlement decisions in Q2019-2.
[1]Press release European Commission 2 December 2021 ‘Antitrust: Commission fines UBS, Barclays, RBS, HSBC and Credit Suisse € 344 million for participating in a Foreign Exchange spot trading cartel.’
[2] The G10 currencies are AUD, CAD, EUR, JPY, NZD, NOK, GBP, SEK, CHF and USD.
[3] Summary of Commission decision of 16 May 2019, Case AT.40135.
On 19 November 2021, the European Commission issued a press release stating that it had fined Conserve Italia Soc. coop. agricola and its subsidiary Conserves France S.A. (together ‘Conserve Italia’) a total of €20 million for participating in a cartel for the supply of certain types of canned vegetables to retailers and/or food service companies in the EEA.[1] Other cartel members, including Bonduelle, Coroos and Groupe CECAB, settled the case with the Commission back in 2019. As Conserve Italia was the only producer who chose not to settle, the Commission’s investigation against Conserve Italia continued. The cartel lasted for 13 years, with Conserve Italia participating from 15 March 2000 to 1 October 2013. The infringement covered the entire EEA.
[1]Press release European Commission 19 November 2021 ‘Antitrust: commission fines Conserve Italia €20 million for participating in canned vegetables cartel.’
In Q4, the Commission issued press releases stating that it was conducting unannounced inspections in several sectors:
- according to a press release of 12 October 2021, the Commission was conducting inspections in locations in several Member States at the premises of companies active in the wood pulp sector[1], due to concerns about possible cartel violations;[2]
- according to a press release of 25 October 2021, the Commission was also conducting inspections at the premises of a pharmaceutical company active in animal health in Belgium, due to concerns about possible abuse of a dominant market position;[3] and
- according to a press release of 23 November 2021, the Commission was also conducting inspections at the premises of company active in the defence sector, due to concerns about infringement of the cartel prohibition.[4]
[1]Wood pulp is a dry fibrous material made of wood, which is used to manufacture various paper products.
[2] Press release European Commission 12 October 2021 ‘Antitrust: Commission carries out unannounced inspections in the wood pulp sector’
[3] Press release European Commission 25 October 2021 ‘Antitrust: commission carries out unannounced inspections in the animal health sector in Belgium’
[4]Press release European Commission 23 November 2021 ‘Antitrust; commission carries out unannounced inspections in the defence sector.’
On 11 October 2021, banking companies UBS Group AG, UBS AG and Nomura International plc, Nomura Holdings, Inc took the European Commission to court over the imposition of antitrust fines for a cartel in European government bonds.[1] UBS is challenging the approach taken by the Commission in setting the fines, principally arguing that the Commission failed to apply generally applicable EU rules for calculating financial institutions’ turnover, thus breaching the general principles of equal treatment and legitimate expectations. Nomura, on the other hand, is arguing that the Commission erred in the assessment of facts and law, for example as regards its finding of a “by object” breach of antitrust law and its assessment of the alleged period of infringement. In support of the action, the applicants rely on ten pleas in law to argue for the annulment of the fine against the applicants in whole or in part and to substantially reduce the fine imposed on the applicants. The EU General Court has published summaries of the companies’ appeals in the EU OfficialJournal.[2]
[1] Press release European Commission 11 October 2021 ‘UBS, Nomura challenge European government bonds antitrust fines at EU court’
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’
