Association the Woonbond has initiated litigation against the Dutch State regarding an act which aims to combat “scheefwonen” – the situation where a person with a much too high income rents a relatively cheap house.[1] Based on this act, house owners (landlords) may increase rent dependent on the income of the tenant. For this purpose, landlords may request data about the income of tenants from the tax authorities. According to the Woonbond, the tax authorities violate(d) privacy laws by providing income data of tenants to landlords and the Woonbond aims to obtain a statement of law on the basis of the (old) WCAM that it is indeed unlawful.

On 1 April 2022, the Advocate-General gave his opinion in the case, which is pending before the Supreme Court. According to the Advocate-General:

• The Woonbond is admissible. The State argued that tenants could individually aim request the tax authorities not to provide their income data and if necessary enforce this through administrative procedures. Administrative procedures have priority over civil procedures. The Advocate-General argues however that this would be overly cumbersome. Therefore, the Woonbond may litigate in civil proceedings.
• The provision of tax data was unlawful in a certain period between 2013-2016. Tax authorities have a duty of confidentiality regarding income data and there was no legal basis to provide this income data. After 2016, this legal basis was created and therefore the provision of income data became lawful.
• No damages were claimed so there is no obligation for the state to pay damages for the unlawful provision of income data in the period 2013-2016.

The advice of the Advocate-General is mostly interesting as it shows that matters that could theoretically be litigated in individual cases before the administrative court, may sometimes be litigated in civil proceedings on the basis of the WCAM (or now WAMCA).

[1] Procurator General of the Supreme Court, 1 April 2022, ECLI:NL:PHR:2022:346

On 6 April 2022, the District Court of The Hague rendered judgment in a case between the association Koninklijke Verbond van Ondernemers in het Horeca en Aanverwant Bedrijf (“Horeca Nederland”) and the Dutch State.[1] As a result of the COVID-19 pandemic, hospitality establishments in the Netherlands had been ordered to close and various restrictive measures had been taken. Due to the closures and restrictions, hospitality establishment owners had suffered damage. In this class action, Horeca Nederland sought, inter alia, a declaratory judgment that the Dutch State had acted unlawfully towards all hospitality establishment owners in the Netherlands.

Under Dutch law, the substance of a class action can only be examined if, inter alia, a collective claim is more efficient and effective than lodging individual claims (Article 1018c(5)(b) DCCP). This is where the case went wrong for Horeca Nederland.  The District Court did not consider it sufficiently plausible that the collective claim was more efficient and effective than lodging an individual claim. The District Court considered it important to determine to what extent the impact of the closures and the measures for the various hospitality establishment owners was the same. The Dutch State argued that the hospitality establishment owners were not a homogeneous group, and that the restrictions and closures had a different impact on the various types of hospitality establishment owners. However, Horeca Nederland was of the opinion that the special circumstances could be abstracted from.

The District Court ruled that, as the hospitality establishment owners had suffered various disadvantages from the restrictions and closures, the question of unlawfulness could not be answered in general. According to the District Court, this involved such a diverse group of entrepreneurs and complex set of measures and conduct by the Dutch State that it was not possible to jointly adjudicate the claims of all entrepreneurs without assessing the specific circumstances. For that reason, the District Court declared Horeca Nederland’s collective claims inadmissible.

[1] District Court of The Hague 6 April 2022, ECLI:NL:RBDHA:2022:3182

On the 19 April 2022 the Court of Appeal of The Hague dismissed the appeal brought by Stichting Viruswaarheid and the Nederlandse Vereniging Kritisch Prikken (“NVKP”) against the judgement by the District Court of the Hague in first instance.[1] In 2021, the two organizations started a class action in summary proceedings against the Dutch State in which they motioned for the immediate reversal of the market approvals of multiple COVID-19 vaccines, as well as a revision of the advice issued by the government to get vaccinated. The District Court signaled that there were issues with each of the claims but ultimately dismissed the claims on the grounds that preliminary relief proceedings were not appropriate for the complexity of the questions they raised.

The Court of Appeal agreed with the District Court on that ground, and also added additional grounds for dismissal. According to the Court of Appeal, both organizations have not sufficiently showed that they met the requirements to act on behalf of their constituency in a representative action. The court ruled that Stichting Viruswaarheid insufficiently substantiated the claim that they represented a group of people with similar interests, since the organization handed over little to no information about who they were representing. As for the NVKP the court ruled that their mission statement to ensure “informed consent” when it comes to vaccinations does not extend to a motion to stop vaccinations all together. The court also ruled that regardless of whether the organizations were able to represent their constituents in bringing these claims, their claims went far beyond impacting only their constituents. According to the court the organizations have no legitimate interest in reversing the approval of all COVID-19 vaccines, which would affect everyone in the Netherlands.

[1] The Hague Court of Appeal 19 April 2022, ECLI:NL:GHDHA:2022:643

In proceedings before the District Court of Noord-Holland on 26 April 2022, De Ondernemingsvereniging Bazaar (“the Association of Undertakings”) wanted to have access to the underlying documents of the service charges paid by the tenants to the Beverwijkse Bazaar (“De Bazaar”).[1] In addition, the Association of Undertakings sought a declaratory judgment that the percentage of administration costs should not exceed 5%, which was 15%. The Association of Undertakings stated that it was permitted to act in its own name on behalf of three anonymous undertakings that had rented space at De Bazaar (“the Undertakings”). According to the Association of Undertakings, it could do so as a collective representative, or as assignee, or as an authorised representative.

First of all, the Association of Undertakings asserted that it was entitled to bring claims on behalf of the Undertakings, since it represented the interests of these undertakings and had included this as an objects clause in its articles of association. According to the District Court, this could be considered an invocation of Article 3:305a of the Dutch Civil Code (DCC). The District Court ruled that the Association of Undertakings could not invoke Article 3:305a DCC because it had not been established that the Association of Undertakings was sufficiently representative. In addition, it could not be deduced from the documents that there was/were a supervisory body, sufficient financial resources, appropriate and effective mechanisms for participation in decision-making, a generally accessible website, sufficient experience and expertise. For that reason, according to the District Court, the interests of the Undertakings were insufficiently safeguarded.

The District Court then ruled on the question of whether this meant that the Association of Undertakings could be regarded an assignee. The District Court ruled that assignment could not relate to claims for the submission of documents and a claim for a declaratory judgment. These claims were not transferable under Article 3:94 DCC, because these are not personal claims, option rights or licence rights.

The Association of Undertakings was only declared admissible as the Undertakings’ authorised representative on the basis of powers of attorney. However, the claims lodged were dismissed by the court as De Bazaar had already sufficiently informed the Undertakings, and no specific reasons had been put forward as to why further information was justified. The proposal to reduce the service charges was also rejected; the Association of Undertakings has insufficiently substantiated its claim.

[1] District Court of Noord-Holland 26 April 2022, ECLI:NL:RBNHO:2022:3821

On 17 May 2022, the Court of Appeal of The Hague ruled on both the admissibility of Stichting Vredesbeweging PAX (“PAX”) and the substantive question of whether the Dutch State was not and is not allowed to export military goods to Egypt based on international obligations. [1]

With regard to PAX’s admissibility, the Court of Appeal ruled that the Preliminary Relief Judge had wrongly dismissed this, since PAX’s articles of association explicitly refer to the objectives of Stichting Interkerkelijk Vredesberaad and Vereniging Pax Christi Nederland and the objects clause in its articles of association covers the content of the present case. In line with the Preliminary Relief Judge, the Court of Appeal denied the substance of the claim. It had not been made sufficiently plausible that the military goods to be exported to Egypt would be used in the violation of human rights.

[1] Court of Appeal of The Hague, 17 May 2022, ECLI:NL:GHDHA:2022:834

6On 18 May 2022, the District Court of Oost-Brabant ruled on the jurisdiction of CNV and FNV.[1] This class action concerns the continuation of the participation in a pension fund after the transfer of the business of XPO Supply Chain Netherlands III. After the transfer of the business, this participation in the pension fund for employees was converted into a (much) cheaper pension scheme, which was detrimental to the employees, according to CNV and FNV.

The District Court ruled that because both FNV and CNV are large nationally operating employees’ associations that represent the material and immaterial interests of employees and inactive persons, they could be considered sufficiently representative in that sense. This applied equally to most of the employees who were not affiliated with the unions. In addition, the District Court decided that the unions could act jointly because it had been neither asserted nor shown that one is more suitable than the other to act as an exclusive representative and they jointly issued a single summons against XPO. In connection with the opt-out and opt-in, the District Court ruled that the decision must be posted on the employees’ associations’ Internet pages. The possibility to opt-out must be published on an (internal) news site and/or in a (staff) magazine. In so doing, the District Court deviated from the requirement to have the announcement made in the national newspapers. The District Court concluded that CNV and FNV are admissible in the proceedings.

[1] District Court of Oost-Brabant, 18 May 2022, ECLI:NL:RBOBR:2022:1995

On 24 May 2022, the Amsterdam Court of Appeal rendered a final judgment in a case between the interest group Associated Business Music Distributors and six music distributors[1] (together “ABMD et al.“) and the Buma and Stemra foundations (“Buma/Stemra“).[2] Buma/Stemra [Copyright Office for Musical Compositions] is the Dutch collective management organisation for music licences. ABMD et al. asserted that in licensing music to be played for business purposes, Buma/Stemra abused its dominant economic position[3] because it applies different licence conditions for its members than for streaming services. The Court of Appeal concurred with this assertion. Firstly, it established that Buma/Stemra holds a dominant position on the copyright licensing market for making music available to be played for business purposes. Secondly, the Court of Appeal established that Buma/Stemra did indeed apply different conditions (i.e.: rates) for the use of music by streaming services and for classic music distributors. Thirdly, the Court of Appeal qualified this as abuse, which may harm the distributors’ competitive position. As a result, Buma/Stemra is acting unlawfully vis-à-vis the AMD members. Buma must immediately take action to eliminate the inequality and Buma/Stemra must compensate all damage suffered. The amount of the damage will be determined in further proceedings, the follow-up proceedings for the determination of damages.

[1] BCM Music Systems B.V., DJ-Matic B.V., Easys Horeca B.V., PB Sound B.V., The Music Marketeers B.V. en Xenox Music & Media B.V.

[2] Amsterdam Court of Appeal 24 May 2022, ECLI:NL:GHAMS:2022:1512.

[3] Article 24 of the Competition Act and 102(c) TFEU.

On 25 May 2022, the Amsterdam District Court rendered an interim judgment in a case initiated by Macedonian Thrace brewery S.A. (“MTB“) against Heineken N.V. and its Greek subsidiary Athenian Brewery S.A. (together “Heineken“).[1] In September 2014, the Greek competition authority established that Heineken had abused its dominant position on the Greek beer market by excluding main competitors from the distribution chain as much as possible. MTB is a competitor seeking compensation for the damage. The District Court has already rendered previous interlocutory judgments in these proceedings, which were discussed in Q (2019-2 and 2021-1).

The District Court discussed three subjects. Firstly, the District Court found that Greek law applies, but this was not in dispute between the parties. The parties do have a difference of opinion on the question of whether the claim had become time-barred under Greek law, which was the second subject. The District Court merely provided a preliminary finding because it had not yet established that the alleged conduct had taken place. It based that finding on opinions of Greek professors submitted by the parties. The District Court concluded that the limitation period under Greek law does not commence until the unlawful act has ended and concurred with the infringement period established in the decision. Thirdly, the question was whether the court is bound by the decision of the Greek competition authority. Relevant in this respect is the interpretation of a Greek statutory provision. The District Court usually assesses this on the basis of the parties’ assertions, but here the Court wanted to consult an expert from the International Legal Institute. The parties will be given the opportunity to comment on the announced appointment of experts and the proposed questions to the ILI.

[1] Amsterdam District Court 25 May 2022, ECLI:NL:RBAMS:2022:2866.

On 1 June 2022, the District Court of The Hague rendered judgment on the collective claim of Stichting Japanse Ereschulden c.s. against the Dutch State.[1] In essence, this case pertains to the claimants’ assertion that the Dutch State acted unlawfully by waiving the claimants’ rights of action against Japan in the context of the Peace Treaty concluded with Japan, without compensating the affected Dutch people for the war damage suffered under the Japanese occupation of the Dutch East Indies. In that respect, the claimants also considered themselves to be wrongly discriminated because the Dutch people who suffered under German occupation – whose claims against Germany were abandoned – did receive partial or full compensation for war damage. The Dutch State conducted a defence asserting that there was no unlawful act, that there was no war damage and that the claims had become time-barred.

Despite the fact that it sympathised with the claimants, the District Court ruled that no legal basis could be found for the claimants’ claims, that there had been no expropriation at the time and that the claims had become time-barred. The District Court saw no possibility of setting aside or stretching these rules of law. This judgment is striking because the District Court explicitly expressed its sympathy and compassion for the claimants in these proceedings.

[1] District Court of The Hague, 1 June 2022, ECLI:NL:RBDHA:2022:5165

On 11 June 2022, the District Court of The Hague rendered judgment in proceedings instituted by Vereniging Verticaal Transport against the Dutch State.[1] In this judgment, the District Court emphasised the distinction between a class action and proceedings before the administrative court. According to established case law, in cases in which the legal protection of individual interested parties is assigned to the administrative court, a legal entity merely combining their interests cannot lead to said legal entity having access to the civil court. The same applies if, save for the combined interests, an interest group also stands up for a general interest in the protection of the rights of a larger group of persons that is diffuse and undefined. A collective interest that is derived solely from individual interests that can be represented in administrative proceedings is therefore not eligible for representation in a class action. The interest group is admissible in a class action if (i) the persons it represents do not have recourse to administrative law, including cases in which interested parties cannot be required to take the administrative law route, or in so far as it (ii) stands up for its own interest for which the interest group has no recourse to the administrative court. Vereniging Verticaal Transport was declared admissible for part of the claims. The association explicitly and repeatedly asserted in its summons that the proceedings were not based on a class action and that the claims in the summons should not be considered collective claims either. As a result, the District Court had to assess in each claim whether the association itself has a sufficient interest.

[1] District Court of The Hague 22 juni 2022, ECLI:NL:RBDHA:2022:5894

On 22 June 2022, the Amsterdam District Court rendered judgment in a class action against Mercedes et al.[1] These proceedings have been instituted by three different foundations that want to be the exclusive representative. In this dispute, the foundations are claiming, inter alia, damages from Mercedes et al. because they manufactured and sold diesel cars with cheating software. In this judgment, the District Court rendered a decision on jurisdiction and the applicability of the WAMCA.

Firstly, the District Court declared the Stichting Emission Claim, one of the three foundations, inadmissible because it did not issue its summons within the statutory period and also did not request a postponement.

The District Court then discussed its jurisdiction. Not all claims of the foundations have been lodged against all the defendants for the benefit of the same group of persons whose interests the foundations represent. According to the District Court, this affects the assessment of jurisdiction, which is why it distinguishes between persons who purchased a vehicle in the Netherlands and persons who purchased a vehicle in another country of the European Union. The dealers and the importer are all domiciled in the Netherlands, the claim lodged against them that serves to protect similar interests of persons residing in the Netherlands who purchased a vehicle in the Netherlands is therefore not of an international nature. The Dutch court has jurisdiction with regard to that claim. Pursuant to Article 4(1) of the Brussels I Regulation Recast, the court has jurisdiction with regard to the claim for the benefit of buyers who do not reside in the Netherlands and who purchased their vehicle from a Dutch dealer. The Dutch court also has jurisdiction with regard to the car manufacturers in so far as the vehicle was purchased in the Netherlands, which jurisdiction can be derived from Article 7(2) Brussels I Regulation Recast (erfolgsort).

According to the District Court, no jurisdiction can be derived with regard to the claim aimed at protecting the similar interests of persons who purchased a vehicle in another country of the European Union. With regard to that claim, the District Court found that it had no jurisdiction on the basis of Article 8(1) Brussels I Regulation Recast due to a lack of a sufficiently close connection. Nor can jurisdiction with regard to that claim be derived from Article 7(2) Brussels I Regulation Recast; the place of the act (handlungsort) and the place where the damage occurred (erfolgsort) is not located in the Netherlands, according to the District Court.

The District Court subsequently gave an opinion on the applicability of the WAMCA. The WAMCA applies if the claim is lodged after 1 January 2020 and the harmful event or events occurred on or after 15 November 2016. The District Court finds that the initial, common and essential harmful event to which the legal claim and the proceedings pertain is, in this case, the putting in place of the illegal manipulation tool. That is why, according to the District Court, Article 3:305a (old) DCC applies in this case.

[1] Amsterdam District Court 22 June 2022, ECLI:NL:RBAMS:2022:3586

On 28 April 2022, the Landgericht Stuttgart denied a claim from Themis Schaden GmbH, a German claim vehicle, against Daimler in a class action relating to the truck cartel.[1] Themis Schaden claimed for around 350 underlying freight forwarders an amount of approximately EUR 96 million in damage in connection with the truck cartel established by the European Commission in 2016 and 2017. However, the court did not award the claim. It concurred with Daimler’s defence that Themis Schaden had no claim because the assignment agreements were invalid. Under German law, claim vehicles and their assignment agreements must comply with the Rechtsdienstleistungsgesetz, the law that prescribes rules for claim vehicles. The court ruled that the assignment agreements used by Themis Schaden did not comply with said law. The court also held that the claimant’s assignment model ignored the limits of its licence for class actions and that the assignment model boiled down to an unsolvable conflict of interest for the claimant.

[1] Press release of Landgericht Stuttgart 28 April 2022, ‘Urteil der 30. Zivilkammer zum Lkw-Kartell’.

On 4 May 2022, a UK judge of the English Competition Appeal Tribunal (“CAT“) ruled on the English company Blue Planet Holdings Limited‘s claim demanding inspection against the local authority of Orkney, Orkney Island Council, the ferry company Orkney Ferries Limited and haulier Sinclair Haulage Limited.[1] Blue Planet asserted that the authorities wrongly gave monopoly positions to the ferry company and the haulier with regard to transport to the Scottish Orkney Islands. As a result, the hauliers could charge (excessive) high prices to users for the transport of goods destined for the Orkney Islands. Investment company Blue Planet claims the resulting damage and requested inspection of, among other things, a list of transporters and their trips on relevant routes. The defendants had already been ordered to do so before, but had refused to provide this information. The court again found that the parties must comply with such court orders.

[1] Order of 4 May 2022 of the Competition Appeal Tribunal, case 1418/5/7/21 (Blue Planet Holdings Ltd/Orkney Islands).

On 6 May 2022, the Court of Appeal ruled on an appeal of BT Group[1] against the CAT’s 27 September 2021 judgement by which it certified Le Patourel’s proposed damages claim as eligible for collective (class) proceedings upon an opt-out basis.[2] Le Patourel, as second class representative, alleges that BT Group has abused its dominant position in the market for voice only telephony by charging customers supra-competitive prices to customers.

BT Group appealed to the certification of the proposed claim and argued that if the claim were to be certified, it should proceed upon an opt-in basis, instead of opt-out. Opt-in would require any person wishing to benefit from the claims to, deliberately, join the claim at the outset. An opt-out claim, on the other hand, automatically includes all members of a defined class except those that choose to opt-out. The reason the CAT deciding on opt-out had to do with the fact that customers of voice-only services are often elderly and vulnerable and would not easily be inspired to sign up also given the limited award in the end (around 140 pounds).

BT Group argued in an appeal however, that the applicable rules expressed a general preference for opt-in “where practicable”. According to BT Group, it would be practicable to get the proposed class to opt-in because it would be possible to identify and contact BT customers based on customer records held by BT.

The Court of Appeal dismissed the appeal. Later, the court will further rule on whether to grant BT permission to submit an appeal against the CAT’s certification of the claim.

[1] The entities summoned are BT Group PLC and British Telecommunications PLC.

[2] Court of Appeal (Civil Division), [2022] EWCA Civ 593, Case No: CA-2021-000748 (formerly C3/2021/1632).

On 13 May 2022, the CAT ruled on a request for appeal by Mastercard Inc in a class action case initiated by Walter Hugh Merricks CBE in connection with the MIFs cartel established by the European Commission in 2007.[1] Merricks had summoned Mastercard on 6 September 2016 on behalf of all of Mastercard’s surviving aggrieved parties, an opt-out case. MasterCard defended itself by asserting that the class action could not or could no longer pertain to people who died after that date. The CAT had rejected this defence in March 2022 and now decided on 16 May 2022 that no appeal could be lodged against that ruling. However, Mastercard could still lodge an objection directly with the appeal court because of the legal issue at hand. Mlex reported on 18 May 2022 that Mastercard had announced that it would lodge an objection.[2]

[1] Competition Appeal Tribunal 13 May 2022, case 1266/7/7/16 (Merricks/Mastercard).

[2] MLex, ‘Mastercard to fight on at appeal court over scope of UK class action’, 18 May 2022.

On 10 June 2022, the UK Court of Appeal ruled in the case between Gemalto Holding B.V. and Thales Dis France SA and 13 others (“Gemalto“) versus Infineon Technologies AG, Infineon Technologies UK Ltd, REnesas Electronics Corporation (“Infineon“).[1] Infineon was fined by the European Commission in 2014 because of price agreements over chips. Competitor Gemalto had subsequently initiated proceedings for damages. The question was whether Gemalto’s claims had meanwhile become time-barred. The Court of Appeal ruled, as had the lower courts, that this was indeed the case. It noted that the five-year limitation period begins to run on the date of the European Commission’s press release of 22 April 2013. It is relevant that Gemalto played a role in the European Commission’s investigation into the cartel in the years before. Gemalto received, among other documents, the Statement of Objections. The Court of Appeal therefore found that Gemalto knew about the cartel at least at the time of the press release of 22 April 2013, even though the European Commission’s decision dates from a later date, namely 2014.

[1] Court of Appeal (Civil division), [2022] EWCA Civ 782, case CA-2022-00233 (Gemalto/Infineon).

On 29 June 2022 it was announced that the CAT allowed proceedings between Dr Rachael Kent and Apple Inc. and Apple Distribution International Ltd regarding the prices charged by Apple in its App store.[1] Ms Kent was a proposed representative for all the aggrieved parties of Apple and claimed that Apple was infringing competition law by obtaining 30% income from app developers in exchange for placement in its app store. She requested permission to initiate an opt-out class action, known in England as a collective procedure order (CPO). Although Apple opposed this, the CAT unanimously decided that the subject was sufficiently important to allow these proceedings, but what exactly the proceedings were about would be assessed later. The next discussion was whether her CPO actually met the statutory requirements.

[1] Competition Appeal Tribunal, 29 June 2022, case 1403/7/7/21 (Kent/Apple).

On 7 April 2022, Advocate General Szpunar gave an opinion in one of the trucks cases, this time of Spanish company AD and others versus Paccar inc., DAF Trucks N.V. and DAF Trucks Deutschland GmbH.[1] It was mainly about the extent to which there was an obligation to provide information set out in Article 5 of the Antitrust Damages Directive[2]. This obligation was included to give aggrieved parties of the cartel the opportunity to request information that is within the domain of the cartelists and that is relevant to their claim for damages. The question was whether this only pertained to existing information, or whether the defendants can also be required to produce information ex novo. Advocate General Szpunar believed this to be the case. He determined that the words “relevant evidence” of Article 5 of the Antitrust Damages Directive also pertain to documents that the defendant “must create ex novo, by compiling or classifying information, knowledge or data held by it”.

[1] Opinion of Advocate General Szpunar, 7 April 2022, case C-163/21 (AD and others/Paccar and others).

[2] 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 of the competition law provisions of the Member States and of the European Union.

On 22 June 2022, the Court of Justice ruled in another truck case, this time initiated by the Spanish party RM versus AB Volvo and DAF Trucks NV in response to questions for a preliminary ruling from the Spanish court in Léon.[1] Among other things, the question was whether the rebuttable presumption of damage from the Antitrust Damages Directive can apply in cases under Spanish law. The Court of Justice ruled that this was not the case, as the Spanish government did not transpose the Antitrust Damages Directive into Spanish law in good time. Because the cartel already ended before the implementation deadline, application of the rebuttable presumption of damage is prohibited with retroactive effect.

[1] CJEU 22 June, case C-267/20 (AB Volvo, DAF Trucks NV/RM).

On April 20, the Authority Consumer & Market (“ACM”) announced to launch an investigation into a possible cartel in the road furniture sector.[1] To this end, the ACM conducted a raid earlier this month. The ACM suspects that a number of companies had prior contact about the price they would charge in government tenders for road furniture.

[1] Press release ACM of 20 April 2022: ‘ACM investigates possible cartel in road furniture sector’.

On 4 May 2022, the ACM announced to various media that it was conducting a preliminary investigation into Google.[1] The reason was a complaint from Match Group, the parent company of dating app Tinder. Match Group complained that Google was abusing its dominant position by not accepting any payment system in its download store other than that of Google. In addition, app providers were no longer allowed to refer to alternative payment options. The ACM would investigate the complaint. These are not isolated complaints. The ACM has already imposed penalties subject to non-compliance for EUR 50 million on Google’s competitor Apple because of unauthorised payment rules when using the app store. In response, Apple made proposals to change the system.[2] In May, Google emphasised to the media that its system was different from Apple’s, because it is possible to download apps and make payments in the Android environment via other app stores.

[1] ‘ACM starts preliminary investigation into Google after complaint about abuse of power’, NOS, 4 May 2022; ‘ACM investigates Google app store for possible abuse of power’, RTL Nieuws, 4 May 2022; ‘ACM to examine Google for abuse of power in Play Store’, De Telegraaf, 4 May 2022.

[2] ‘ACM assesses Apple’s modified proposal on terms and conditions for dating apps’, 28 March 2022, ACM website.

Shortly thereafter, on 11 June 2022, the ACM announced that the discussion with Apple had ended because Apple’s payment systems now satisfied the requirements set by the ACM.[1] Apple now allows dating apps to offer alternative payment methods. Apple still had to pay the penalties subject to non-compliance imposed in the amount of EUR 50 million.

[1] ‘ACM: Apple changes unfair conditions, allows alternative payment methods in dating apps’, 11 juni 2022, website ACM.

On 4 May 2022, the Bunderkartellamt determined that Meta Platforms Inc. (formerly Facebook) to be of paramount significance for the competition across markets. Meta is known for its services on Facebook as well as its leading position in social media advertising. The Bundeskartellamt concluded that Facebook exploits a social media ecosystem financed by advertisements. As a result of this decision, Meta is subject to special control for the duration of five years after the decision entry into force. Meta has announced not to challenge the decision.[1]

[1] ‘New rules apply to Meta (formerly Facebook) – Bundeskartellamt determines its “paramount significance for competition across markets”’, 04-05-2022, website Bundeskartellamt.

On 9 Juni 2022, the Bundeskartellamt imposed approximately of 12.5 million euros of fines in total, on Dilliger Hütte (Aktien-Gesellschaft der Dillinger Hüttenwerke) and Hochtief Solutions (Hochtief Solutions AG) for concluding restrictive agreements within the context of award procedures. It is the first time the authority uncovered illegal agreements in which both the contracting party and the bidders participated. The undertakings were involved in both vertical and horizontal bid rigging. The vertical agreement was implemented through measures on the basis of which the representatives of Dilliger Hütte exerted influence over the award procedure. Contracts were thereby either awarded to a Saarland-based industrial construction company or alternatively to Hochtief. In addition to this vertical bid rigging agreement, the representatives of the Saarland-based industrial construction company and of its competitor Hochtief exchanged information about Hochtief’s pricing behavior, which enabled the Saarland-based company to adjust its bids, depending on whether it wished to obtain the contract. The fine imposed on Dillinger Hutte is final. Hochtief, however, has appealed the order imposing the fine and the Bundeskartellamt’s findings on which the decision is based. [1]

[1] ‘Bundeskartellamt/ industrial construction, Fines imposed for concluding agreements in the industrial construction sector’, 9-06-2022, website Bunderkartellamt.

On 14 June 2022, the Bundeskartellamt has initiated a proceeding against Apple for reason of Apple’s App Tracking Transparency Framework and tracking rules. The Bundeskartellamt has reasonable suspicion that Apple’s rules allow the company favor to its own services by applying the rules to third parties only while exempting itself from being subject to these rules.

This proceeding is subsequent to an earlier proceeding against Apple on 21 Juni 2021, which focused on whether Apple is of paramount significance across markets pursuant to Section 19a(1) of the German Competition Act. The decision is yet to be concluded. This proceeding is based on Section 19a(2) if the German Competition Act and article 102 TFEU. [1]

[1] ‘Bundeskartellamt reviews Apple’s tracking rules for third-party apps’, 14-06-2022, website Bundeskartellamt.

In June 2022, the Bundeskartellamt started an investigation into alleged anti-competitive conduct by Google on its Google Maps Platform. Through Google Maps, users can not only navigate, but also have access to the locations such as shops, restaurants and hotels. Yet, it is not possible to integration Google Maps with other map services. The German competition authority launched an investigation into this conduct, and will be examining whether the impossibility of combining Google Maps with alternative map services constitutes abusive conduct. In January 2022, the German competition authority marked Google as being of paramount significance for competition across markets, based on article 19a of the German Competition Act. Because of this, the German competition authority will have more competences in its research into Google Maps.[1]

[1] ‘Proceeding against Google for possible anti-competitive restrictions of map services (Google Maps Platform)’, 21-06-2022, website Bundeskartellamt.

On 26 May 2022, the Competition and Markets Authority (“CMA”) announced in a press release that it is investigating whether Google had broken the law by restricting competition in the digital advertising technology market.[1] This is the CMA’s second investigation into Google’s practices in ad tech, previously the CMA started an investigation into Google and Meta’s “Jedi Blue” agreement.[2] Both investigations concern Google’s advertising technology intermediation (“ad tech stack”): the complex set of services which facilitate the sale of online advertising space between sellers and buyers. Google has strong positions at various levels of the ad tech stack and charges fees to both sellers and buyers of online advertising space. The CMA examines key parts of the ad tech stack in which Google owns the largest service provider and assesses whether Google’s practices in these parts may distort competition.

Furthermore, there are concerns that Google illegally favours its own services, as Andrea Coscelli, CMA’s Chief Executive stated “We’re worried that Google may be using its position in ad tech to favour its own services to the detriment of its rivals, of its customers and ultimately of consumers.”

[1] Press release CMA of 26 May 2022: ‘Google probed over potential abuse of dominance in ad tech’.

[2] Press release CMA of 11 March 2022: ‘CMA investigates Google and Meta over ad tech concerns’.

On 14 June 2022, the CAT rendered a judgment in the case between Meta Platforms, Inc. (“Meta”) and the Competition and Markets Authority (“CMA”).[1] In December 2021 Meta launched an appeal against the CMA’s decision that Meta’s acquisition of Giphy Inc. (“Giphy”) would lead to a substantial lessening of competition.[2] Following an in-depth investigation, the CMA had found that Meta’s purchase of Giphy would reduce competition between social media platforms and had already removed Giphy as a potential challenger in the display advertising market in the UK. The CMA’s decision required Meta to sell Giphy to a purchaser approved by the CMA.

In its judgment on the case, the Tribunal upheld the CMA’s decision on 5 of the 6 challenged grounds. More specific, the Tribunal stated “we have no hesitation in concluding that the decision made by the CMA was one that it was entitled to make”. Thus was concluded that the merger between Meta and Giphy substantially reduced dynamic competition.

[1] Competition Appeal Tribunal, 14 June 2022, Case 1429/4/12/21 (Meta Platforms Inc/CMA).

[2] Initial enforcement order CMA, 9 June 2020.

On 6 July 2022, the CMA announced in a press release that it is investigating Amazon.com, Inc. (“Amazon”) over concerns that practices affecting sellers on its UK Marketplace may be anti-competitive.[1] The CMA’s investigation will consider whether Amazon has a dominant position in the UK and whether it is abusing that position and distorting competition by giving an unfair advantage to its own retail business or sellers that use its services, compared to other third-party sellers on the Amazon UK Marketplace. More specific, the investigation concerns the way that non-public third-party seller data may be used within Amazon’s retail business, how Amazon sets criteria selecting which product offer is placed within the ‘Buy Box’ and which sellers can list products under Amazon’s ‘Prime label’ on its Marketplace in the UK. This investigation follows a current European Commission probe looking into similar concerns.[2]

[1] Press release CMA of 6 July 2022: ‘CMA investigates Amazon over suspected anti-competitive practices’.

[2] EC press release of 14 July 2022: ‘Antitrust: Commission seeks feedback on commitments offered by Amazon concerning marketplace seller data and access to Buy Box and Prime’.

On 2 May 2022, the European Commission issued a Statement of Objections on the Apple and its practices regarding Apple Pay.[1] The Statement includes the Commission’s preliminary view on whether Apple is abusing its dominant market position for mobile wallets on iOS devices.

The Statement of Objections confirms that Apple does indeed have a dominant market position in this respect. Because Apple only has access to the necessary NFC ‘tap and go’ technology for mobile wallets on iOS mobile devices they are limiting other competition. The result is less innovation and fewer choices in mobile wallets for consumers.

This Statement of Objections does not prejudge the outcome of the investigation into Apple’s practices regarding Apple Pay the Commission started on 16 June 2020.

[1] EC press release of 2 May 2022: ‘Antitrust: Commission sends Statement of Objections to Apple over practices regarding Apple Pay’.

On 17 May, the European Commission has started unannounced inspections at the premises of companies active in the fashion industry in several Member States.[1] In addition, the Commission has sent official information requests to several companies in the fashion sector.

[1] EC press release of 17 May 2022, ‘Antitrust: Commission carries out unannounced inspections in the fashion sector’.

On 10 June 2022, the European Commission issued a Statement of Objections to České dráhy and Österreichische Bundesbahnen over alleged collective boycott. The Commission notes provisionally that between 2012 and 2016, ČD and ÖBB engaged in a collective boycott to preserve their market position and impede RegioJet’s This was the case both in the Czech Republic and on the international rail link between Prague and Vienna.

The Commission’s preliminary view is that ČD and ÖBB have an agreement to prevent RegioJet from gaining access to ÖBB-used wagons for long-distance passenger transport. ČD and ÖBB coordinated their actions to boycott RegioJet from selling used ÖBB wagons in order to ensure that RegioJet could not acquire them.

On 14 June 2022, the European Commission issued a press release stating that they carried out unannounced inspections on the premises of companies active in the construction of networks and treatment plants for drinking water and wastewater in several Member States.^[1]

[1] EC press release 14 June 2022, ‘Antitrust: Commission carries out unannounced inspections in the water infrastructure sector over alleged bid-rigging”.

On 20 June 2022, the European Commission opened a formal antitrust investigation to determine whether Vifor Pharma had restricted competition by illegaly discrediting its number one competitor in Europe in the intravenous iron treatment market, Pharmacosmos. [1] Vifor Pharma’s actions appear to have been aimed at hindering competition against its drug Ferinject. According to the press release, the Commission has evidence that Vifor Pharma has for many years discredited Monofer by disseminating misleading information about its safety. The Commission has concerns that Vifor Pharma may have conducted a misleading communications campaign directed primarily at healthcare professionals that may have inappropriately impeded the introduction of Monofer into the European Economic Area (“EEA”).

[1] EC press release 20 June 2022, ‘Antitrust: Commission opens investigation into possible anticompetitive disparagement by Vifor Pharma of iron medicine’.

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’.