On 31 December 2020, Stichting BREIN summoned “X” to appear in court for their large-scale infringement. On 27 October 2017, X received a court order to stop offering hyperlinks to (infringing) television and film content (“IPTV packages“).[1] Despite a settlement agreement between X and Stichting BREIN, X continued to send IPTV packages via various websites.[2] Stichting BREIN claims infringement of copyright and neighbouring rights, requests a prohibition on offering infringing IPTV packages, requests X to provide information of the people involved in the infringing websites and requests X to pay a fine of € 100,000 for breach of contract.

X is to appear before Midden-Nederland District Court on 1 June 2022.

[1] Preliminary Relief Judge of Midden-Nederland District Court 27 October 2017, ECLI:NL:RBMNE:2017:5510 (BREIN/Moviestreamer).

[2] www.easyuse.tv; www.easy2use.tv; iptvkoning.tv; iptv4you.site123.me;

On 5 January 2021, the foundation Privacy First sued the State of the Netherlands regarding the UBO register. As of 27 September 2020 legal entities must register the personal data of their ultimate beneficial owners.[1] According to Privacy First, this register violates fundamental privacy rights of UBOs and access thereto should be disabled. No (published) decision has so far been rendered by the court.

[1] The writ of summons on behalf of Stichting Privacy First was published on 5 January 2021.

On 8 January 2021 Midden-Nederland District Court ruled in the case of Stop Online Shaming. The case concerns blacklists of doctors who, according to the defendant, have made mistakes in medical procedures. Interestingly, the case concerns preliminary relief proceedings (in Dutch: kort geding). The writ of summons was published on 12 November 2020, with (digital) hearings on 24 November 2020 and 23 December 2020 and judgment on 8 January 2021 – less than two months in total. The proceedings would have been completed even sooner, if the defendants would not have challenged one of the judges.

On 16 February 2021, a ruling was rendered for the first time on appeal on the legal relationship between Dutch food delivery platform Deliveroo and its delivery persons.[1] The Court of Appeal, like the Subdistrict Court at first instance, decided that the delivery persons should not be considered self-employed but employees. With the exception of the freedom to perform work, all elements and circumstances point towards the existence of an employment agreement, according to the Court of Appeal. Deliveroo has filed an appeal in cassation against this decision.

[1] Amsterdam Court of Appeal 16 February 2021, ECLI:NL:GHAMS:2021:392.

On 20 February 2021, the District Court declared the class action lodged against the State by Stichting Pensioenbehoud en Katholieke Bond van Ouderen in Noord-Brabant to be admissible.[1] The State’s defence that the claimants do not have a cause of action and have insufficient interest within the meaning of Article 3:303 DCC had failed.

However, the District Court then went on to reject the claimants’ claims. The claimants asserted that Article 15 of Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (“Directive“) has been implemented incorrectly in Dutch legislation. The District Court ruled that there is no question of Article 15 of the Directive having been incorrectly implemented. The District Court also saw no reason to refer questions to the Supreme Court for a preliminary ruling.

[1]The Hague District Court 20 February 2021, ECLI:NL:RBDHA:2021:944, PJ 2021/37.

In the case against vagina.nl, three interlocutory judgments have so far been rendered. The first two of these have been discussed in Q4 2020. On 28 October 2020 the court ruled that Stop Online Shaming was to be appointed as the exclusive representative. Expertisebureau Online Kindermisbruik is also allowed to perform litigation actives, but only with regard to children. On 18 November 2020 the court proposed the manner in which the case would be announced. The court proposed 1) a text to be published in national newspapers and 2) a text on the Dutch case law website informing potential Dutch victims how to opt out and potential non-Dutch victims how to opt in. On 24 February 2021 the court published the final texts to be published. Interestingly, the defendant argued that the text should be as neutral as possible. The court agrees with this argument in principle, but considers that the text and headline should draw attention. Therefore, preference was given to a slightly less neutral text. The final text is published in the collective claims register. The judgments demonstrate the practical aspects of the opt-in/opt-out character of class actions and the manner in which the court deals with such aspects.

Diesel Emissions Justice Foundation (DEJF) litigates against Volkswagen et al. on behalf of persons affected by the diesel scandal. It is assisted by, among others, the firm that has written this quarterly report. In contrast to the situation under the old law, it is now possible under the new Settlement of Large-scale Losses or Damage (Class Actions) Act (Wet afwikkeling massaschade in collectieve actie, “WAMCA”) to claim damages and request that the decision hold for all persons in a ‘narrowly defined group’, unless they decide to opt out. Car Claim is litigating against Volkswagen in separate proceedings under the old law. Car Claim is claiming in these proceedings that it should first be allowed to join DEJF in its case and then to request that the District Court stay that case until Car Claim’s original action has reached its conclusion.

On 3 March 2021, the District Court dismissed Car Claim’s claims.[1] WAMCA allows ‘competing’ representatives to lodge their own claim under WAMCA within three months. Car Claim failed to do so and is trying to join the proceedings as a claimant by some other means. The District Court denied that request because it goes against the prudent system designed by the legislature for such situations. Even in the event that the request needed to be assessed on the basis of the old system, the District Court denied it, as Car Claim failed to demonstrate that it would be prejudiced by the outcome of the DEJF case. In all cases, it appears that Car Claim’s interests are served by DEJF’s claims being denied, which is another reason that it cannot be allowed to join the proceedings on the side of and in support of DEJF.

[1] Amsterdam District Court 3 March 2021, case / cause-list number: C/13/681 190/ HA ZA 20-299.

On 6 March 2021, Stichting Namaakbestrijding React, also known internationally as the Anti-Counterfeiting Network (“React Foundation”), summoned Contextlogic B.V. and Contextlogic Inc. (“Contextlogic”) to appear in court. React Foundation had initiated a class action (Article 3:305a Dutch Civil Code), representing the interests of rights holders against counterfeiting. Contextlogic manages the e-commerce platform Wish.com, which facilitates transactions between sellers and buyers.

React Foundation claims Contextlogic has infringed the intellectual property rights of its members, by advertising counterfeit goods on its Wish platform. Prior to the writ of summons, React Foundation had requested Contextlogic to provide personal data of the fraudulent advertisers. While Contextlogic responded by providing a list of details about advertisers, React Foundation found that this list had not been adequately verified and could not lead to identification of the advertisers. Particularly because 12 out of 13 infringers were located in China, additional information was needed to identify them.

In their writ of summons, React Foundation requested Contextlogic to provide payment information of the fraudulent advertisers as well as ID information from the infringers located in China. React Foundation argues that the current notice-and-takedown procedure is unsuccessful in keeping infringing content offline and that they therefore have a pressing interest in receiving identifying information.

Contextlogic was to appear before the Amsterdam District Court on 25 March 2021.

Pursuant to Article 3:305a DCC, Stichting Gin Schade filed claims against the backer of failed investments in Dutch hardwood. Like the District Court, the Amsterdam Court of Appeal ruled on 16 March 2021 that the foundation’s claims are inadmissible because it did not meet the requirements of Article 3:305a DCC at the time the proceedings were instituted.[1] In doing so, the Court of Appeal attached importance to the fact that the requirements of the Claim Code 2011 had not been met, nor, for that matter, the new requirements of the Claim Code 2019. An amendment to its articles of association in 2018 was of no avail to the claim foundation, because that would entail that it was acting in a different capacity. The claims instituted on the basis of a mandate were also disregarded, because these had become time-barred, as the letter of interruption pertained explicitly to collective claims instituted on the basis of Article 3:305a DCC.

[1] Amsterdam Court of Appeal 16 March 2021, ECLI:NL:GHAMS:2021:747.

Stichting BREIN, TALPA TV B.V. and RTL NEDERLAND B.V. summoned “A” (also known as “M”) and “B” (an individual whose identity is unknown so far) to appear in court. The defendants sell IPTV subscriptions via various websites and a physical store in Rotterdam. By doing so, defendants are infringing the intellectual property rights of Talpa and RTL, but also, for example, those of Walt Disney Company and Ziggo.

Stichting BREIN, being the exclusive representative, sought by way of preliminary relief – in short – access to all the relevant information in order to gather evidence against A and B. In the proceedings on the merit, Stichting BREIN sought, inter alia, a declaratory judgement, an order prohibiting further infringement and damages for Talpa and RTL.

A and B were to appear before the Rotterdam District Court on 14 April 2021.

Stichting BREIN brought an action against “X”, because X made a large number of works protected by copyright and neighbouring rights available to the public by uploading them on Usenet. Usenet is currently used primarily for the illegal distribution and downloading of entertainment content.

Stichting BREIN sought a declaratory judgement and an order prohibiting further infringement. X was to appear before the Gelderland District Court, Arnhem location, on 17 March 2021.

Class representative Liz Williams filed a claim against data broker Experian in February 2021. According to Williams, Experian holds information on about 46 million individuals in England and Wales. The claim aimed to obtain £750 damages for a total of £34 billion.

On 2 February 2021, the London High Court of Justice gave judgment regarding two procedural issues in the British Airways data breach case.[1] Firstly, the court ruled that the cut-off date (the date until which people can join the group litigation) was to be extended. A later cut-off date helps knowing the extent of the potential group and allows the claimants to benefit from advertising efforts. Secondly, the court ruled advertising costs to increase the class size would not be recoverable from British Airways.

[1] High Court of Justice 2 February 2021, [2021] EWHC 217 (QB), Case No. QB-2020-000208.

In a 27 January 2021 decision, Rotterdam District Court ruled that Shell, Total and Kuwait Petroleum were allowed to summon other participants in the Bitumen Cartel as third parties to the proceedings. This was in the context of the claim for damages brought against them by the State of the Netherlands. The third parties summoned are BP Europa SE, Wintershall AG, Nynas Belgium AB and SNV. In addition, Shell, Total and Kuwait had requested the District Court to allow them to summon other entities as third parties at a later stage, but the District Court denied this request. In a 13 September 2006 decision, these parties were fined by the European Commission for their participation in a cartel in which a total of eight suppliers of bitumen for road construction made arrangements on sale and purchase prices and on applying unequal conditions vis-à-vis trade partners.[1]

[1] Rotterdam District Court 27 January 2021, ECLI:NL:RBROT:2021:793.

Various recent judgments of German Regional Courts have raised questions about the validity of litigation vehicles and assignment of claim models under German law, in particular the German Legal Services Act (RDG).[1] On 24 February 2021, the Regional Court of Hanover was critical of a claimant, Cartel Damages Claims (CDC), in a lawsuit for damages against the sugar producers Pfeifer & Langen, Nordzucker and Südzucker.^[2] CDC had asserted claims from a total of 63 companies and groups of companies. The amount in dispute was around 180 million euros.

CDC had bundled and asserted assigned claims from numerous companies in its action vehicle Retail Cartel Damage Claims SA. The companies involved are numerous large and small manufacturers of confectionery and other sugar-containing foods, as well as food retailers such as Rewe.

As in the decision in the Kaufland suit of 20 May 2020,[3] the court took the view that there was a violation of the Legal Services Act because CDC was pursuing claims from direct and indirect sugar buyers at the same time. The court considered that the decisive factor for the existence of a conflict of interest in this case was that the claimant was indisputably asserting claims from cedants from different market levels for the same sugar supply.

The defendants had argued that manufacturers’ damages would be mitigated if the manufacturers had passed on inflated sugar prices to retailers. The Regional Court therefore considered the bundled assertion of assigned claims of food manufacturers and traders to be a prohibited representation of conflicting interests:

“If claims for damages are asserted by direct customers and indirect customers at the same time, this constitutes a fundamental and irresolvable conflict of interests.

(aa) This applies at least with regard to the question of a possible passing-on of damages, i.e. the so-called passing-on. With regard to passing-on, direct customers must claim that they did not pass on the cartel-related excessive prices they paid, as the claimant does here for the direct customers; indirect customers, on the other hand, must claim the exact opposite in order to substantiate the damage they suffered.

(…) In the present lawsuit, the claimant must therefore simultaneously assert the non-reselling and the reselling, which, however, is logically mutually exclusive.”

The fact that the conflict of interests actually applied only to “less than 3.5%” of the total purchase volume could not help the claimants. The court considered “this would not change the fundamentally conflicting interests” and that article 4 RDG does not provide for “partial incompatibility”.

The claimants, on the other hand, had emphasised that they were all pursuing precisely the same goal. The judgement is not yet final.

[1] See Press release of 7 February 2020, Regional Court of Munich, case Az. 37 O 18934/17 and Regional Court of Hanover 20 May 2020, case no. 18 50/16.

[2] Regional Court of Hanover 24 February 2021, Case 18 O 34/17.

[3] Regional Court of Hanover 20 May 2020, case no. 18 50/16.

On 23 September 2020, the highest court of Germany, the Bündesgerichtshof (“BGH“), annulled two interim judgments stating that the reasons given did not justify the finding that the cartel members concerned were in principle liable for the damages suffered. The annulment decisions were published in Q1 2021 and concern interim judgments of the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf.

1. The interim judgement of the Higher Regional Court of Stuttgart was rendered in a damages lawsuit brought by two construction companies against truck manufacturer Daimler for its participation in the truck cartel.[1] In this case, the Higher Regional Court had ruled that Daimler was in principle liable for the damages claimed by the claimants. The BGH considered that although the court was right in presuming that a cartel leads to an increase of the market prices of the purchased goods or services and therefore to damage, such presumption must be made on a case-by-case basis and taking into account the specific circumstances of the cartel. According to the BGH, the Higher Regional Court had not done so in full. The BGH was therefore concerned that the Higher Regional Court had reversed the burden of proof and had required the cartel member to proof that no damage had been suffered – thus placing an excessive burden of proof on the defendants.
2. The interim judgment of the Higher Regional Court of Düsseldorf was rendered in a damages lawsuit brought against Shreck-Mieves, Balfour Beatty Rail and ThyssenKrupp GfT Gleistechnik because of their participation in the train-tracks cartel.[2] It found that it could be assumed that the claimants had suffered damage. The BGH annulled this decision for similar reasons as it did the aforementioned decision of the Higher Regional Court of Stuttgart. The BGH found also in this case that the Higher Regional Court had not considered all specific circumstances of the case and that there was a risk that the court had reversed the burden of proof. It made it clear that such reversal would be an error in law.

The two cases have been referred back to the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf, respectively, to be examined again.

[1] OLG Stuttgart Decision of 4 April 2019, 2 U 101/18.

[2] OLG Düsseldorf Decision of 23 January 2019, VI-U (Kart) 17/17.

A ruling of the Regional Court of Bonn dated 2 December 2020 but disclosed in Q1 2021, has demonstrated that the Bundeskartellamt has a margin of discretion on how it conducts an investigation.[1] The ruling concerned a damages claim brought by pesticides wholesaler BayWa, which company was identified by the Bundeskartellamt as a key member of a cartel amongst wholesalers of plant-protection products. After the Bundeskartellamt had received an anonymous tip-off about the cartel, it contacted (only) three of the possible cartel members and provided them with the opportunity to cooperate under the leniency programme. These companies subsequently cooperated and provided the Bundeskartellamt with information based on which it could make its case against the (other) wholesalers, among which was BayWa. BayWa argued that the Bundeskartellamt had acted discriminatory by contacting only some of the suspected cartel members and not all of them and therefore claimed damages. The Regional Court of Bonn did not agree and stated that this investigative method did not breach any official duty or law by which the Bundeskartellamt is bound. Moreover, the court found that Bayway had not sufficiently shown that a causal link existed between the contested investigation method and the damages claimed.[2]

[1] Landgericht Bonn 2 December 2020, 1 O 201-20, ECLI:DE:LGBN:2020:1O201.20.00.

[2] See also the press release of the Bundeskartellamt, ‘Amtshaftungsklage der BayWa gegen das Bundeskartellamt abgewiesen’, 2 December 2020.

Mobile phone SIM card maker Gemalto is trying to claim damages from Infineon Technologies and Renesas Electronics for their participation in the smartcard chip cartel, and for which they were fined by the EC in 2014. On 31 March, a judge of the High Court ordered that the defence of the cartel members that the claim is time-barred should be decided on first as that would save time and costs. The defendants have argued that the limitation period started to run as of the second request for information from the EC to the cartel members in 2012. The names of the (suspected) cartel members were included in the request and that should have been a trigger for Gemalto to investigate whether it had a cause of action and start litigation, according to the defendants. Gemalto stated in its defence that at that stage, it could only be aware of the fact that these parties were suspected of forming a cartel and an investigation was ongoing, not that a cartel existed. The case will proceed only if and after it will be proven that the claim is not time-barred.[1]

[1] The case reference is CP-2019-000027 Gemalto NV and others v. Infineon Technologies AG and others.

On 18 March 2021, the High Court issued a ruling stating that it does not grant Allianz Global Investors and others permission to appeal a High Court ruling. In that ruling the High Court had stated that cartel members Barclays, UBS and other banks can argue that the damage allegedly suffered by the claimant investment funds as a result of the foreign-exchange markets cartel were mitigated because the damage had been passed on to investors. The main reasons for not allowing the appeal was because it would not be efficient in terms of case management.[1] The court stated that the appeal at this time might delay the case, while it would be more efficient for there to be a (potential) appeal on all issues at the end of the trial. The banks were fined €1.07 billion by the European Commission (EC) in 2019 for participating in a foreign exchange spot trading cartel between 2007 and 2013.[2]

[1] According to Mlex, ‘Allianz Global Investors, others refused UK appeal bid over ‘pass-on’ forex cartel ruling, 18 March 2021.

[2] European Commission press release of 16 May 2019, Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan, and MFUG €1.07 billion for participating in foreign exchange spot trading cartel.

On 4 March 2021, Iveco was ordered by the Competition Appeal Tribunal to provide data disclosure in a damages lawsuit including claimants energy group Suez, waste-management group Veolia and industrial-product supplier Wolseley (“VSW proceedings”). The VSW proceedings concern the truck cartel and are due to commence in late 2023 at the earliest. The application related to data from dealers through which Iveco sold trucks, both Iveco-owned dealers and independent dealers. The tribunal considered these data significant and relevant to the issues in the case at hand, at least in so far as necessary to determine the price paid for the trucks to the dealers by end customers and its breakdown (for example, whether discounts were applied or not). However, Iveco has no control over the records of independent dealers and the tribunal considered that effecting such disclosure would be burdensome and costly, as well as impracticable. The tribunal therefore urged the parties to reach an agreement on how to provide disclosure to the extent reasonably necessary for the information to assist in determining the net end customer price and to be made available at proportionate cost. This resulted in a compromise, namely that the parties were to agree on a selection of one Iveco-owned dealer in each of France and Germany (out of a total of 10 dealers) and have those dealers provide general descriptions on how trucks were priced, how and at what level the price decisions were taken and on what information such decisions were based. Furthermore, Iveco was to conduct proportionate and reasonable searches for and disclose and provide inspection of certain data/documents of the relevant Iveco-owned dealers in relation to domestic sales in the cartel period.[1]

[1] Competition Appeal Tribunal 4 March 2021, [2021] CAT 6, 1292/5/7/18/ (T).

On 5 March 2021, the UK Court of Appeal ruled that DAF will not be allowed to challenge a ruling from the Competition Appeal Tribunal (“CAT”) on a case in which DAF disputed the validity of the litigation funding arrangements of two mass follow-on damages claims based on the truck cartel decision and argued that the claims should therefore be denied. In general terms, the issue at hand was whether a litigation funding agreement entered into with claimants by third parties who play no part in the conduct of the proceedings, but whose compensation is fixed as a share of the damages recovered by the client – which party is normally the funder – are “damages-based agreements” (“DBAs”) within the meaning of the relevant legislation which regulates such agreements (Section 58AA of CLSA 1990). If such agreements are considered DBAs, the likely consequence is that they will be unenforceable, unless the agreements comply with particular conditions set out in Section 58AA. The CAT did not concur with DAF on this, and now the Court of Appeal has ruled, after careful consideration of the relevant legislation and case law, that the CAT did not err in law in its interpretation of the relevant provisions. DAF’s application for judicial review on the merits was therefore rejected.[1]

[1] Court of Appeal, appeal against the Competition Appeal Tribunal’s ruling, 5 March 2021, [2021] EWCA Civ 200.

On 4 March 2021, another data disclosure-related instruction was issued by the CAT in the context of the truck cartel, during a hearing in proceedings between energy group Suez and truck manufacturer Iveco. The tribunal instructed the parties to consider and carry out what would be the “most practicable and useful disclosure” and urged that the parties should strive for a “pragmatic approach” which would enable data disclosure at “proportionate costs”. If the parties are unable to resolve the matter, the tribunal stated it would deal with the claimants’ application for disclosure.[1]

[1] 1292/5/7/18 Suez Groupe SAS and Others v Fiat Chrysler Automobiles N.V. and Others;
1293/5/7/18 Veolia Environnement S.A. and Others v Fiat Chrysler Automobiles N.V. and Others;
1294/5/7/18 Wolseley UK Limited and Others v Fiat Chrysler Automobiles N.V. and Others.

On 25 February 2021, the UK High Court ruled on an application by banks including Barclays, UBS and Citibank to put forward “pass-on” arguments in order to defend themselves against damages claims brought by 175 claimants, including investment funds Allianz, Pimco and Brevan Howard.[1] The claims rely on two EC decisions released in 2019 in which several banks were fined for collusive behaviour regarding forex manipulation. The banks requested certain pass-on issues to be advanced and heard during the proceedings, against which the claimants protested. This case is not a typical case of pass-on; pass-on is said to occur when an investor redeems or withdraws its investment. The banks wanted to argue in the requested proceedings that damage suffered by the investment funds was passed on to investors who cashed out on assets with reduced value, and who could thus claim such damage themselves. The claimants argued that the investors themselves do not have a cause of action, which is why the defendant’s argument of pass-on mitigation has no real prospect of success and should be struck out. The claimants also noted that the pass-on defence of the defendants could lead to wide-ranging disclosure in respect of a bare assertion. The High Court concurred with the defendants, however, in considering that the alleged pass-on cannot be shown to be impossible or bound in law to fail and should therefore be admitted to the case.

[1] UK High Court, [2012] EWHC 399 (Comm), Case No: CL-2018-000840.

On 21 January 2021 MLex reported that British Airways, KLM and other airlines attended a hearing before the Court of Justice with two Dutch litigation vehicles, Stichting Cartel Compensation and Equilib Netherlands.[1] This case concerned the air cargo cartel for which the European Commission had imposed fines on the airlines in 2010. Now, in 2021, the question was whether the Amsterdam District Court could also adjudicate damage that, in brief, had arisen before the entry into force of Regulation (EC) No. 1/2003.[2] The English court had already ruled that such damage must be disregarded, but the Amsterdam District Court had held that it had to have independent jurisdiction to adjudicate matters from that period in the interest of promoting legal certainty. Advocate General Michal Bobek announced he would deliver his non-binding opinion on 13 April 2021. The court will then study that opinion and issue a ruling at a later date, MLex reported.

[1]               A. Boyce, “Airlines, litigation vehicles scrap over Dutch court’s ‘competence’ for cartel claims at Top EU court’, 21 January 2021. It regards case number C-819/19 (Stichting Cartel compensation and Others).

[2]              Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

On 15 February 2021, the CJEU published the request for a preliminary ruling from the court of Hannover, Germany, in one of the trucks cases against Daimler. The court sought clarification on whether the Commission’s decision must be interpreted as meaning that special-purpose/specialised vehicles, in particular refuse collection vehicles, are also covered by the findings of the Commission.[1]

[1] Case number C-588/20. Published in the Official Journal of the European Union on 15 February 2021.

In relation to the same trucks case, Spanish courts referred one of the cartel damages cases against DAF, Daimler, Iveco, MAN, Volvo-Renault and Scania to the CJEU on 11 March 2021.[1] This was the fourth case that was referred by Spanish courts; prior to this referral the courts of Barcelona, Madrid and Léon also referred questions to the CJEU for preliminary rulings.[2] On this occasion, the court of Barcelona sought clarification on the disclosure rules in the Damages Directive.[3] The claimants wanted to compel truck manufacturers to prepare and disclose data sets. They required a list of the models manufactured by DAF, classified according to the categories used by Spanish authorities, the transfer price for each model and the “total delivery costs”, which is a standard document produced by each manufacturer. The defendants argued that EU law did not require them to produce evidence for claimants. The Spanish courts wished to receive clarification on elements of the Damages Directive as the text appears to support the defence, but a narrow interpretation would make it more difficult for injured parties to claim damages.

[1] Case number C-163/21.

[2] Case numbers C-882/19 (Barcelona), C-30/20 (Madrid) and C-267/20 (Léon).

[3] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements on the competition law provisions of the Member States and of the European Union.

As part of the measures to combat COVID-19, the Dutch government ordered the (temporary) closure of the retail sector to the public, with the exception of food stores and chemist’s stores. In response, INretail sought the re-opening of the non-essential retail sector in preliminary relief proceedings against the State. On 12 March 2021, the Preliminary Relief Judge denied all of INretail’s claims.[1] The Preliminary Relief Judge concurred with the State in finding that the need to enforce the closure of non-essential retail stores continued to exist in full, while, in addition, maintaining this measure was proportionate.

[1]The Hague District Court 12 March 2021, ECLI:NL:RBDHA:2021:2295.

After holding consultations, the Netherlands Authority for Consumers and Markets (“ACM“) – the Dutch competition authority – made the draft guideline it published last year on sustainability agreements more specific. The guideline provides clarity about the conditions under which companies are in fact allowed to collaborate when it comes to combating the climate crisis and achieving other sustainable goals. With that in mind, the guideline gives a broader interpretation of the European rules in some cases. The ACM believes it important that the European Commission and other countries adopt the same approach to enforcing the rules and that a European guideline be developed. In the meantime, companies need not worry about the outcome of that process, as the ACM has announced that while the discussion on the subject is still ongoing in Europe, it will refrain from imposing fines on companies that have followed the draft guideline in good faith.

On 14 January 2021, the Bundeskartellamt imposed fines on two manufacturers of manhole covers and gully tops and their representatives for agreements on prices and rebates and an agreement to carve up two major contracts between themselves. The companies concerned are MeierGuss Sales & Logistics GmbH & Co. KG and Hydrotex Technologies AG. The agreement existed at least from 16 May 2018 until 14 November 2018 and the fines imposed total around 6 million euros.[1]

[1] Press release Bundeskartellamt ‘Manufacturers of manhole covers and gully tops fined for price-fixing’, 14 January 2021.

On 19 January 2021, the 10^th amendment to the German Competition Act entered into force. A key element of the amendment is the modernisation of the competition authorities’ control of abusive conduct – which is mainly focused on the need for fast and effective action in light of the rapid growth of large digital platforms. The Bundeskartellamt will under the new Act be able to take preventive measures and prohibit conduct such as self-preferencing of a group’s own services or impeding third companies from entering the market by processing data relevant for competition. The traditional abusive control provisions are also modernised and further specified by adding internet-specific criteria and making clear, for example, that access to data is relevant for competition and might lead to market power. Germany is the first to implement such measures; in the EU similar tools are still being discussed.

As to cartel prosecution, the amendment implements the ECN Plus Directive which is in place at EU level. In line with this Directive, companies and their employees will be required in the future to cooperate to a certain extent in establishing the facts of the case. The amendment also includes several new provisions regarding administrative fines and provisions on the leniency programme – which was not yet enshrined in law prior to this amendment.[1]

[1] Press release Bundeskartellamt, ‘Amendment of the German Act against Restraints of Competition’, 19 January 2021.

The Bundeskartellamt has imposed fines on steel forging companies CDP Bharat Forge GmbH (now: Bharat Forge Global Holding GmbH), Bharat Forge CDP GmbH and Johann Hay GmbH & Co KG Automobiltechnik (now: Musashi Bockenau GmbH & Co KG). The Bundeskartellamt found after investigations that the companies exchanged competition-sensitive information about costs, their pricing strategies and concrete negotiations with suppliers and customers. The fines imposed total around 35 million euros.[1]

[1] Press release Bundeskartellamt, ‘Bundeskartellamt imposes fines on steel forging companies’, 4 February 2021.

On 23 February 2021 the UK government published a policy paper elaborating, among other things, its view on the introduction of an opt-out regime for data protection class actions, implementing Article 80(2) GDPR.[1] The paper was published after a consultation was held in 2020. According to the paper, there is insufficient evidence of systematic failings in the current regime to warrant new opt-out proceedings.

When the UK government implemented the GDPR, it chose not to implement Article 80(2) GDPR. This article permits the Member State to make regulations allowing a non-profit organisation to represent data subjects without the data subject’s express consent.

The UK government concluded it is still not willing to implement Article 80(2) GDPR and introduce new legislation. Although the UK government accepts that some groups might find it difficult to complain to the Information Commissioner’s or bring legal proceedings of their own accord, there is no strong evidence to suggest that the Information Commissioner’s Office cannot or will not investigate serious, singular breaches of the legislation or systemic failings across whole sectors. The Information Commissioner’s Office is UK’s independent authority set up to uphold information rights in the public interest.

The UK government is also sympathetic to the view that new legislation could increase uncertainty for data controllers and is mindful of the potential impact of new legislation on the workload of the Information Commissioner’s Office and the courts. The UK government is not convinced that any perceived benefits of new legislation would outweigh these risks.

[1] Department for Digital, Culture, Media & Sport, Policy paper UK Government response to Call for Views and Evidence – Review of Representative Action Provisions, Section 189 Data Protection Act 2018, 23 February 2021.

On 20 January, the EC has fined various big players in the EU gaming industry: Valve, owner of online PC gaming platform “Stream” and the five publishers Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax, for the amount of EUR 7.8 million for violating EU competition rules. Stream is one of the world’s largest online PC video gaming platforms and offers more than 35,000 games worldwide. The companies have been found guilty of “geo-blocking” practices by restricting cross-border sales of certain PC video games on the basis of the geographical location of users within the EEA.[1]

[1] European Commission Press Release of 20 January 2021, ‘Commission fines Valve and five publishers of PC video games € 7.8 million for “geo-blocking” practices’.

On 25 January 2021, the European Commission published a non-confidential version of the European Commission’s decision of 14 July 2020 in the ethylene cartel in which the Commission fined Orbia, Clariant and Calenese for implementing a lower purchase price of ethylene to the detriment of sellers.[1]

[1] Case AT.40410 (Ethylene).

On 5 February 2021, Teva Pharmaceutical Industries and Cephalon brought an action before the CJEU against the European Commission to appeal the fine they received.[1] The European Commission fined the pharmaceuticals on 26 November 2020 for establishing in a patent dispute settlement agreement that Cephalon would not enter the market with a general version of the sleeping disorder medicine modafinil.[2] According to the Commission, this was a forbidden pay-for-delay agreement, a restriction of competition by object. The pharmaceutical companies seek annulment or reduction of the imposed fine.

[1] Published in the Official Journal on 22 March 2021, OJ 22 March 2021, C 98/34. Case number T-74/21.

[2] Case number AT.39686 (Cephalon).

On 10 February 2021, the European Commission adopted a decision against Aspen Pharmacare (“Aspen“).[1] In its decision, the European Commission found that Aspen started in 2012 to progressively increase, often by several hundred percent, its prices for 6 medicines which are essential to treat certain serious forms of blood cancer. After four years of investigation, the Commission came to the conclusion that Aspen was leading an excessive pricing policy for these medicines which was in breach of EU competition rules. The Commission accepted commitments by Aspen to reduce significantly the prices of these medicines for the future and reimburse the excessive prices it had charged between October 2019 and February 2021. The European Commission highlighted in its press release that all national health funds and insurance companies injured by this excessive pricing policy may obtain compensation for their damage for the period between 2012 and 2019.^[2]

[1]               Case AT.40394 – Aspen, Commitments to the European Commission.

[2]              Commission’s press release: “Antitrust: Commission accepts commitments by Aspen to reduce prices for six off-patent cancer medicines by 73% addressing excessive pricing concerns”, 10 February 2021.

The UK CMA has appointed a new Senior Director of Cartels, Juliette Enser. She will succeed Howard Cartlidge who is retiring. Ms Enser has worked at the CMA and its predecessor, the Office of Fair Trading, since 2010, having held the position of Director of Cartel Enforcement since 2014. The Senior Director of Cartels has overall responsibility for the CMA’s cartel investigations and seeks to encourage businesses to report illegal activity to the CMA.[1]

[1] Press release CMA, ‘New CMA Senior Director of Cartels appointed’, 8 February 2021.

The UK CMA has released a policy paper in February which explains the refreshed Digital Markets Strategy of the CMA. The ambition of the strategy is in line with the trend amongst competition authorities to address the fast changes taking place as a result of the growth of digital markets. The overarching strategy of the CMA is to build and establish a new Digital Markets Unit within the CMA as a “centre of expertise for digital markets, with the capability to understand the business models of digital firms, including the role of data and the incentives driving how these firms operate”, according to the paper. The intention of the unit is also that it will support the government in developing the regulatory framework for digital markets and to make sure that those are in line with international regulation on this topic.[1]

[1] CMA, The CMA’s Digital Markets Strategy: February 2021 refresh.

Spokespersons for Amazon, Booking.com and Apple have expressed criticism on the draft Digital Markets Act which the European Commission revealed in December 2020. The draft prescribes that any platform qualifying as a “gatekeeper” has to comply with certain rules, without exceptions. According to Mlex, the spokespersons for the aforementioned platforms have expressed that the rules would be too rigid and complicated for trying to address specific problems, and “over-inclusive” as not all large platforms can be considered as gatekeepers.[1]

[1] Mlex, ‘Apple, Amazon, Booking.com take shots at Eu’s ‘gatekeeper’ regulation’, 9 February 2021.

A study on responsible private funding of litigation of the European Added Value Unit of the European Parliament was completed in February 2021.[1] The study discusses whether and why the European Union should act in the field of third-party litigation funding, and gives a comprehensive overview of third-party litigation funding in the European Union, by describing the main players on the European third-party litigation funding market and the EU legal framework.

[1] Responsible private funding of litigation European added value assessment. https://www.europarl.europa.eu/RegData/etudes/STUD/2021/662612/EPRS_STU(2021)662612_EN.pdf