An EU antitrust decision in 2017 penalised Google because it favoured its own price comparison service and the decision forced Google to open product searches to competing services. In a blog, Google states that the internet traffic that leads to ads placed by competing price comparison sites for people who shop via Google has increased significantly recently.^[1]According to Mlex, ‘Google flags growing take-up of online shopping remedy after EU decision’, 29 March 2022.

According to the European Commission, about 90 percent of the offers displayed at the top of the search pages would contain at least one offer by a competitor. Google does this by displaying a Shopping Unit containing links to other comparison services such as Kelkoo and Shopzilla.com. But price comparison sites in Europe, including Idealo, Foundem and Kelkoo, have said that the remedy is not effective and that Google is in fact strengthening its market power. They asked for larger concessions from Google in the aftermath of a court decision last year that confirmed the Commission’s decision. A spokesperson from the Commission did not want to comment on Google’s blog post, but noted that in the latest data on the use of Google’s remedy, “about half the clicks in Shopping Units” relate to offers from Google’s competitors.

On 15 March 2022, the EC published draft antitrust exemption rules on cooperation between rivals in the form of research and development agreements and on specialisation agreements.

On 20 January 2022, the Commission published its final report on its 18-month inquiry into the consumer Internet of Things (IoT) sector.^[1]EC Press release of 20 January 2022, ‘Antitrust: Commission publishes final report on consumer Internet of Things sector inquiry’. The inquiry focused on consumer-related products and services that are connected to a network and that can be managed remotely, for example via a voice assistant or mobile device. The final report addresses, among other things, concerns about high barriers to market entry, the impact of a small number of vertically integrated players in the market, and issues concerning access to data, interoperability and exclusivity practices. The high costs of the technology investments and the competitive situation are considered to be the main barriers to entry to and expansion in the sector.

In particular, the investment costs on the market for voice assistants are classified as “almost unaffordably high”. As far as the competitive situation is concerned, various respondents indicated that they were experiencing difficulties in competing with vertically integrated market players and their ecosystems. The report also raises concerns about reduced interoperability due to major forces in the sector, leading to customer lock-in. In addition, the powerhouses in the sector have extensive access to data, giving them dominance over competitors from adjacent markets. The inquiry also identifies market practices that could lead to unfair competitive advantages, such as exclusivity of voice assistants on devices, standard settings and standard installation of certain applications.

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 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.