On 6 October 2021, the District Court of The Hague rendered judgment in the case of Clara Wichmann et al. v. the State regarding the provision of contraception free of charge.[1] Clara Wichmann et al. and the individual claimants in this case sought to have the District Court issue a declaratory judgment to the effect that the State was acting unlawfully by not reimbursing contraception for women over the age of 18. By extension, they demanded that the State reimburse contraception for these women going forward. They asserted that, as a part of sexual and reproductive rights, the right to access to contraception enjoys extensive protection and is embedded in human rights treaties, declarations and legislation. By not reimbursing contraception, women’s access to contraception is impeded in the Netherlands. In so far as access to contraception is in fact currently sufficient, this access is discriminatory in nature, as the financial burden is borne exclusively by women. This results in inequality between men and women, which is a violation of rules of a higher magnitude. The State disputed this, asserting that it was a political matter that called for a restrained assessment by the court.

The District Court held that the right of women to be free in making their sexual and reproductive choices merely implies that the government must make contraception accessible and affordable. It does not however imply that it must be provided free of charge. The same goes for Article 8 ECHR, Article 12 ICESCR and Article 12 of the UN Convention on the Elimination of all Forms of Discrimination Against Women. In addition, the District Court stated that although the current situation could result in inequality between men and women, this does not mean that such inequality is due to the State not reimbursing contraception. Finally, the District Court concluded that it was up to the legislature to respond to Clara Wichmann et al.’s and the individual claimants’ call to action.

[1]District Court of The Hague, 6 October 2021, ECLI:NL:RBDHA:2021:10737

On 19 October 2021, the summons in preliminary relief proceedings of International Air Transport Association (IATA) v. Airport Coordination Netherlands (ACNL) was entered into the central register for class actions.[1] IATA is an association of airlines that promotes the interests of the aviation industry and the interest of free and efficient aviation. It has committed itself worldwide to compliance with slot allocation regulations. ACNL is a legal entity under public law to which legal personality has been conferred pursuant to Article 8a.64(2) of the Aviation Act (Wet luchtvaart). It has implemented a new policy rule for the allocation of slots at the Dutch airports Schiphol, Eindhoven and Rotterdam-The Hague.

IATA wishes to prevent ACNL from interfering, without having the power to do so, by means of a policy rule (Policy Rule Additional Allocation Criteria), with the free choice of airlines to fly routes to and from Dutch airports. IATA asserts that the policy rule has a highly negative effect on the worldwide system of slot allocation (or at least the European part thereof). It is also against the law and unlawful vis-à-vis IATA and its members. This is because by doing so, ACNL is infringing on the division of powers ensuing from European regulations.

IATA therefore requests that the Preliminary Relief Judge prohibit ACNL from implementing the policy rule. It also argues that ACNL itself adopted this policy rule without having it assessed and approved by the European Commission.

[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBNHO-international-air-transport-association-vs-airport-coordination-netherlands.pdf

On 8 November 2021, the Amsterdam District Court rendered judgment on the claim against Royal Air Maroc of ANVR and individual travel agents who are members of IATA.[1] ANVR is an association whose members are individual companies in the travel field. Several Royal Air Maroc flights were cancelled on account of the COVID pandemic. Going against a European Commission recommendation, Royal Air Maroc informed passengers that compensation would be given exclusively in the form of vouchers. They are seeking, among other things, a declaratory judgment to the effect that Royal Air Maroc’s conduct is unlawful and that passengers are entitled to timely reimbursement. In these proceedings, ANVR represents its members and individual travellers who have granted it a power of attorney to act as their authorised representative.

ANVR’s claim on behalf of the individual claimants was declared inadmissible because the association had failed to submit copies of identity documents, as a result of which it could not be verified whether the authorisation forms were actually signed by the passengers in question. Accordingly, ANVR has insufficiently substantiated that it was authorised to lodge the claim on behalf of the individual passengers as well. ANVR’s claim on behalf of its members was declared admissible; they have a sufficient interest in having the claims upheld because they have suffered damages. This damage has been caused by the fact that Royal Air Maroc refuses to refund.. Among other things, the court issued a declaratory judgment to the effect that the policy observed by Royal Air Maroc with regard to vouchers and refunds is unlawful because it denies the passenger the choice between an alternative flight or reimbursement.

[1]District Court of Amsterdam 8 November 2021, ECLI:NL:RBAMS:2021:6461

On 23 November 2021, the District Court of The Hague rendered judgment in preliminary relief proceedings against the State initiated by (i) an anonymised foundation and (ii) an individual claimant.[1] In a class action suit, the foundation is demanding that the corona measures as they applied until 25 September 2021 must again apply or instead that the State must require a negative test result of everyone (including those who have been vaccinated) for a COVID certificate. The State disputes the admissibility of the foundation’s claim.  The foundation is asking the court to apply the exception of Article 3:305a(6) DCC, as a result of which less stringent admissibility requirements would apply.

The District Court concludes that the foundation has failed to appreciate that it must also comply with the requirements of paragraph 1 and the opening words of paragraph 2 if Article 3:305a(6) is applied. In this case, the persons represented by the foundation are so small in number that there is no question of the ‘representativeness’ required to be able to pass the admissibility threshold. In addition, it has not been sufficiently demonstrated how the claim relates to the foundation’s objective, as set out in its articles of association. The conclusion is therefore that the admissibility requirements of Article 3:305a DCC have not been satisfied. The foundation’s claim is therefore inadmissible.

The individual claimant’s claims are however admissible. Said claimant has asserted that the State is not complying with its duty of care. The court ruled that the State has great discretion in taking measures to combat COVID. Only if the State is obviously making incorrect choices is there room for judicial intervention. The Preliminary Relief Judge holds that the State made no obviously incorrect choices. In this case, the public interest – which forms the basis for the choices made by the State, with the State performing a complex weighing of all the interests at issue for the benefit of the entire population – clearly prevails over the claimant’s individual interest. The claims are therefore denied.

[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12811

On 23 November 2021, the District Court of The Hague rendered judgment on the claim of two foundations and one association v. the State.[1] In these proceedings, the claimants sought an injunction prohibiting the State from allowing the export of (future) military goods and technology for the Egyptian State and/or the Egyptian navy. According to the claimants, Egypt violates human rights on a grand scale and the Egyptian Navy is an integral part of this regime. The (Dutch) State acted unlawfully by allowing and granting a permit for the export of these military goods to Egypt; there is a (highly) plausible risk that the proposed deliveries of military goods to the Egyptian Navy could contribute to or even be used directly in acts of domestic suppression, violations of fundamental human rights, violations of international (humanitarian) law and/or otherwise violate the obligations of the Netherlands under the Common Position and the Arms Trade Treaty.

One of the foundations was declared to have no locus standi because it failed to demonstrate that it meets the requirements of Article 3:305a DCC. The other claimants were however declared to have locus standi.

The District Court held that the claimants were unable to make a sufficiently plausible case that, given the current situation, the Minister could not have reasonably arrived at his decision to grant the current permits for the export of military goods to Egypt. The State monitors and takes all available information into account in the process of its decision-making. The State also made a plausible case that it carefully assesses the granting of permits. In addition, it was not asserted, nor is there any evidence, that other EU countries are currently declining to make similar deliveries to the Egyptian Navy. The claimants’ claims were therefore denied.

[1]District Court of The Hague 23 November 2021, ECLI:NL:RBDHA:2021:12810

On 29 November 2021, the District Court of The Hague rendered judgment in a claim of two anonymised associations/foundations and one individual claimant v. the State and individual officials.[1] In preliminary relief proceedings, they sought the revocation of the marketing authorisations of BioNTech/Pfizer, Moderna, AstraZeneca and Janssen (developers of COVID vaccines). In these preliminary relief proceedings, the claimants envisage the immediate suspension of the vaccination campaign. They asserted that the recommendations of the Health Council of the Netherlands, in the context of which the State is informed about vaccinations, are unlawful. All three claimants were declared to have no locus standi. In the case of the foundation and the association, this was based on the exception of Article 3:305a(6) DCC.

The District Court ruled on the merits that the claimants’ claims in these preliminary relief proceedings were not directed against specific (COVID) measures of/decisions by the State. That circumstance alone implied that the claimants in these proceedings had no legally relevant interest in an assessment of the merits of the recommendations by the Health Council of the Netherlands. In addition, the District Court held that it is not the State but the European Commission that had the authority to revoke the marketing authorisation in question. Finally, an assessment of the merits of the recommendations would go far beyond the scope of a preliminary relief proceedings. Consequently, the claimants’ claims were denied. This decision was upheld on appeal.

[1]District Court of The Hague 29 November 2021, ECLI:NL:RBDHA:2021:12992

On 9 July 2021, the Procurator General of the Supreme Court of the Netherlands (“PG”) gave an advisory opinion in response to a judgment of the Court of Appeal of Amsterdam.[1] In short, the case in question concerns whether HP (a manufacturer and seller of printers and cartridges) acts unlawfully by installing so-called dynamic security software on its printers. This software blocks the use of non-HP cartridges.

The claimant is a foundation named ‘123inkt-huismerk klanten’ (the “Foundation”), which was founded by the directors of Digital Revolution B.V., a company selling printer cartridges blocked by HP’s software. The Foundation initiated a claim against HP on behalf of consumers who have bought these cartridges, demanding a ban on the use of the software in the HP printers. The Foundation opted to proceed via the assignment route, which involves the consumers assigning their claims to the Foundation. This meant that the Foundation acted as the formal litigant on behalf of these consumers.

Later in the proceedings, however, the Foundation tried to change its claim to one based on Article 3:305a Dutch Civil Code (“DCC”). In doing so, the Foundation tried to switch from being a formal litigant to a party by representation. According to the PG, a change in litigant status is in violation of due process. In line with the judgment of the Court of Appeal, the PG therefore concluded that the Foundation had no locus standi on the basis of Article 3:305a DCC.[2]

As to whether or not HP was acting unlawfully in using the software, the PG drew a distinction between printers sold before and after 1 December 2016. Regarding the printers sold before 1 December 2016, the PG concluded that the Foundation had no interest in banning the use of the software. This is because HP has removed the software from all these printers, meaning that non-HP cartridges are no longer blocked.

With regard to the printers manufactured after 1 December 2016, the PG concluded, in line with the Court of Appeal, that the use of the software was not necessarily unlawful. The PG argued that HP has a legitimate interest in the use of the software, i.e. to prevent the use of counterfeit cartridges and to avoid reputational damage and possible consumer claims. The PG considered it likely that consumers would attribute negative printer experiences (when using non-HP cartridges) to failure of the printer and thus to HP. Furthermore, HP informs all customers about the software installed in its printers and the consequences thereof. As such, the justification for the use of the software is that the customer has the choice of whether or not to purchase a printer with the dynamic security software built in.

Taking the PG’s conclusion into consideration, the Supreme Court ruled on 24 December 2021 that the complaints could not lead to the annulment of the Court of Appeal’s judgment (Article 81(1) of the Judicial Organisation Act).[3]

[1] Procurator General of the Supreme Court of the Netherlands 9 July 2021, ECLI:NL:PHR:2021:713

[2] Court of Appeal of Amsterdam 17 December 2019, ECLI:NL:GHAMS:2019:4502

[3] Supreme Court of the Netherlands 24 December 2021, ECLI:NL:HR:2021:1950

On 29 December 2021, the Amsterdam District Court rendered judgment in the case of The Privacy Collective (hereinafter: TPC) v. Oracle and
Salesforce.[1] TPC asserts that Oracle and Salesforce collect the personal data of Internet users and sell this information to third parties to enable them to offer personalised ads, among other things. In addition, TPC asserts that Oracle violated the privacy of Dutch Internet users in a data breach. TPC is therefore seeking, among other things, damages in this class action suit. Rather than address the substance of the case in this judgment, the District Court assessed the admissibility of TPC’s claim.

All admissibility requirements of Article 3:305a DCC must be satisfied before a class action can be declared admissible. One of these requirements that the law imposes is the representativeness requirement. The requirement of representativeness prevents a foundation or association from instituting legal proceedings without the backing of a support base. It is up to the foundation or association to factually substantiate how many injured parties actually support the action in question and, accordingly, the scope of the claim it is representing. The court held that TPC had failed to do so. TPC acquired its support base by means of a system of “likes”; visitors to TPC’s website could express their support by clicking on a “like” button. The District Court held this to be insufficient for purposes of the representativeness requirement, in part because insufficient information was provided on the “like” page and no registration was kept of the data of the “likers”. The fact that TPC enjoys the support of privacy organisations does not automatically imply that it is sufficiently representative. TPC’s claim was declared inadmissible. TPC has since lodged an appeal.[2]

[1]Amsterdam District Court 29 December 2021, ECLI:NL:RBAMS:2021:7647
[2] On 28 April 2022, the CJEU handed down its judgement in the case of Meta Platforms Ireland (C-319/20). The judgment shows that collective actions ‘undoubtedly’ contribute to strengthening the rights of those involved. Therefore, strict (admissibility) requirements should not be imposed on interest groups. We will discuss this judgement in Q2022-2.

In a 27 September 2021 decision published in Q4 in a follow-on action in the context of the truck cartel, the Dortmund District Court assumed that the cartel caused harm. The District Court held that the European Commission’s fining decision contains significant indications demonstrative of the cartel’s price effect. The District Court referred to the cartel’s length, broad market coverage (in this case, more than 90% in the EU and nearly 100% of the German market), lack of product substitutability and degree of organisation, among other things. Referring to established economic theories and empirical research, the District Court held that these factors are core indicators generally indicative of a cartel-related price increase (the empirical principle).

The District Court accorded particular weight to the empirical principle due to the contradictory nature of the expert evidence that the parties had submitted. Nor do the submitted expert statements cancel each other out, according to the District Court. The District Court nevertheless held that the indications led, in any event, to the assumption of a certain extent of damage.

The question of whether it is possible to determine the level of damages and/or conduct an expert investigation to that end will be dealt with at a subsequent stage before a decision is rendered in the present case.

On 9 December 2021, an appeal court in Stuttgart handed down a judgment in a truck cartel follow-on action in favour of truck manufacturer Daimler.[1] In 2018, the lower Stuttgart court ordered Daimler to pay compensation to two German construction firms on account of its involvement in the truck cartel.[2] The firms were seeking damages of around €300,000 as compensation for purchased trucks and overpriced liability insurance premiums. After several rounds of appeal before the Stuttgart appeal court (which upheld the judgment at first instance) and the Federal Court of justice (which overturned the appeal court ruling),[3] the case was sent back for reconsideration by the Stuttgart appeal court. The Federal Court of Justice said the appeal court had erred in finding that the claimant construction firms suffered damage because of the cartel. In reaction to the judgment, Daimler declared the following in a statement: “We are still convinced that our customers haven’t suffered any damage. The EU Commission didn’t make any determination in its decision on the question of damage to customers. In addition, there are already some final judgments dismissing actions.”^[4]

[1] Stuttgart higher regional court, 2 U 101/18.

[2] Stuttgart regional court, 45 O 1/17.

[3] Federal Court of Justice, KZR 35/19.

[4] According to Mlex, ‘Daimler overturns truck-cartel claims ruling in Stuttgart appeal court’, 10 December 2021.

On 6 October 2021, the Court of Justice of the European Union ruled in the case of Sumal S.L. v Mercedes Benz Trucks Espana S.L., one of the cases it is handling in response to the truck cartel.[1] In 2016, the European Commission imposed a fine on the defendant’s German parent company, Daimler AG, for infringement of competition law in the truck cartel.[2] However, the Spanish company Sumal had not initiated cartel damages proceedings against Daimler AG but against its Spanish subsidiary. The claims were denied at first instance because this Spanish company was not the addressee of the Commission decision. The Barcelona Court of Appeal however had its doubts about this opinion and referred the case to the Court of Justice of the European Union.

The Court of Justice of the European Union arrived at a different decision. It held that a subsidiary could also be held liable if it formed an “economic unit” with the addressee parent company. The claimant therefore has to prove “the economic, organisational and legal links that unite the two legal entities” and “the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible.”

[1] EC decision of 6 October 2021, case C-882/19 (Sumal/Mercedes Benz Trucks Espana).

[2] See the Commission’s press release: “Antitrust: Commission fines truck producers € 2.93 million for participating in a cartel”, 19 July 2016

On 28 October 2021, Advocate General Rantos delivered an opinion regarding the same truck cartel.[1] In a case between a Spanish company referred to by the letters RM v. Volvo and DAF Trucks, the Court of Appeal of Léon, Spain had asked the Court of Justice for a ruling on the temporal scope of the Antitrust Damages Directive.[2] Relevant in that context is that the Antitrust Damages Directive distinguishes between substantive provisions that have not been declared retroactively applicable and procedural provisions that are applicable in cases that predate the Directive’s entry into force. Two things were at issue.

In Spain, there is a limitation period of one year for non-contractual liability, whereas Article 10(3) of the 2014 European Antitrust Damages Directive specifies a five-year limitation period for bringing actions for cartel damages. The question is which limitation period applies here. The Advocate General concluded that the five-year limitation period is a substantive provision and does not therefore apply to cases where the facts and fines predate the implementation of the Directive.

Another point of dispute was whether the presumption that a cartel leads to damage in Article 17(2) of the Antitrust Damages Directive applies here. The Advocate General held that this was a procedural provision and that it is therefore also applicable in cases where the facts predate the Directive.

[1] Opinion of Advocate General M. Athanasios Rantos, case C-267/20, 28 October 2021. See also Court of Justice of the European Union Press Release No 193/21: “Truck cartel in Spain: Advocate General Rantos clarifies the temporal scope of the directive on the compensation of victims of anti-competitive practices”, 28 October 2021.

[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 11 November 2021, the Court of Justice ruled in the air cargo case between the Dutch litigation vehicles Stichting Cartel Compensation and Equilib Netherlands B.V. v. British Airways, KLM, Lufthansa and a group of other airlines.[1] It answered the questions referred to it for a preliminary ruling by the District Court of Amsterdam, the Netherlands, as to whether national courts could also rule on claims relating to flights dating from before 1 May 2004 between the EU and outside countries; flights dating from before 19 May 2005 between Iceland, Lichtenstein, Norway and outside countries and flights dating from before 1 June 2002 between the EU and Switzerland. The Court of Justice answered in the affirmative. National courts may also rule on older claims.

[1] CJEU 11 November 2021, case C-819/19 (Stichting Cartel Compensation and Equilib/KLM and others).

On 2 December 2021, Advocate General Richard de la Tour delivered his opinion on the CJEU case Meta Platforms Ireland v BVV (ECLI:EU:C:2021:979). The case involves the interpretation of Article 80(2) of the General Data Protection Regulation (“GDPR”). The question before the CJEU is whether consumer interest groups can bring a collective action for breach of the GDPR on behalf of data subjects, regardless of whether an individual data subject’s concrete rights have been violated and without a mandate from the data subject.

De la Tour is of the opinion that not only entities whose sole purpose is the protection of personal data can bring an action. Pursuing an interest related to the protection of personal data, as a consumer protection association does, is sufficient (par. 61). It is furthermore not required that an entity should identify in advance one or more persons affected by the processing. It is sufficient that the processing entailed an infringement of the GDPR (par. 62-63). In interpreting Article 80(2) GDPR, the main focus is on the effectiveness of the GDPR and the protection of the rights of data subjects (par. 64, 67, 73-78, 81 & 83-84). According to De la Tour, collective actions are particularly suited to the objective of establishing a high level of protection of personal data (par. 76-78). Among other things, the provision therefore allows Member States a great deal of leeway to implement the article in a way that allows entities to bring collective actions without a mandate from the data subjects (par. 69-75; also see par. 54 on the optional nature of the provision).

The CJEU is expected to deliver judgment on 28 April 2022.

On 1 December 2021, the Netherlands Authority for Consumers and Markets (“ACM”) published a press release stating that it was carrying out an investigation into a possible cartel in the food processing sector.[1] The competing companies concerned are suspected of having made secret product-sharing agreements with each other. Product sharing involves mutual agreements about which company will manufacture which product, whereas each company should make such decisions independently. Furthermore, the companies are also suspected of making agreements regarding the purchase price of the agricultural products they process, and finally of making agreements regarding the selling price of these products. Prompted by these suspicions, ACM recently carried out raids at various companies in the Netherlands and also at a company in the food processing sector outside of the Netherlands. In the next few months, ACM will investigate whether competition rules have indeed been violated.

[1] ACM press release of 1 December 2021, ‘ACM investigates potential cartel in the food processing sector’.

ACM declares the manufacturers’ objections to the fines for distorting competition unfounded.

In a decision of 25 November 2021, ACM declared the objections of four cigarette manufacturers against a fine imposed by ACM unfounded.[1] ACM fined cigarette manufacturers British American Tobacco International (Holdings) B.V. (‘BAT’), JT International Company Netherlands B.V. (‘JTI’), Philip Morris Benelux BV and Philip Morris Investments B.V. (‘PMI’) and Van Nelle Tabak Nederland B.V. (with trade names including Imperial Tobacco Nederland, ‘ITN’) in 2020 because they had spent years exchanging information about future prices of packs of cigarettes through wholesalers in breach of Article 101 TFEU.

The manufacturers’ grounds for objection related to the interpretation of the market conditions and the facts, the legal qualification of the conduct, the manner in which the proceedings were organised and the level of the fines. The ACM denied all the objections.

[1] Decision of ACM regarding decision of 27 May 2020 with reference ACM/UIT/534410, case number ACM/20/040888, ACM/20/040894, ACM/20/040913, ACM/20/041113.

The Bundeskartellamt has imposed a fine totalling approximately 7 million euros on Bose GmbH, which is based in Friedrichsdorf, on account of resale price maintenance.[1] Bose’s activities in this area mainly focus on the distribution of audio products, especially speakers and headphones. The proceedings were initiated in the context of a request for official assistance from the Austrian competition authority.

Bose’s employees agreed on concerted measures for setting sales prices with the authorised dealers involved. These measures generally pertained to an increase in sales prices, which were also specifically set in some cases. For example, the company intervened on several occasions in which the dealers had deviated from the recommended resale price, prompting the dealers to adjust their conduct accordingly in a number of cases.

[1] Press release of the Bundeskartellamt of 2 December 2021, ‘Bundeskartellamt imposes fine on audio equipment manufacturer Bose’.

On 22 December 2021, the Bundeskartellamt published its review of 2021, which explains the actions it took in that year.[1] First, it initiated new proceedings against Amazon, Apple, Google and Meta (formerly Facebook). This was partly because the Bundeskartellamt had improved its abuse control in early 2021, enabling it to proceed more quickly and effectively against anti-competitive practices by large digital corporations.

Second, it imposed fines of approximately EUR 105 million for illegal cartel agreements. The fines were imposed on special steel producers and steel forging companies and for vertical price-fixing agreements for musical instruments, school bags and consumer electronics. Nine companies informed the Authority about infringements in their sector using the Authority’s leniency programme. Further tip-offs were received from other sources.

Third, although the scope of application of merger control was limited by a legislative amendment in early 2021, the Bundeskartellamt examined approximately 1,000 corporate mergers. Of these cartels, 14 were closely examined in the so-called second phase. Three of these were cleared without obligations. One merger was cleared with obligations, which meant that EDEKA was only allowed to take over some of the Real stores.

Finally, the Competition Register for Public Procurement was launched at the Bundeskartellamt in 2021. The Competition Register provides over 30,000 public contracting authorities in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.

[1]Press release of Bundeskartellamt of 22 December 2021, ‘Bundeskartellamt – Review of 2021′.

On 16 December 2021, the Competition and Markets Authority (“CMA”) issued a statement of objections to Dar Lighting Limited (Dar),[1] which supplies domestic lighting products. According to a provisional conclusion of the CMA, between 2017 and 2019, Dar restricted retailers’ freedom to set their own prices online between 2017 and 2019, requiring them to sell at – or above – a minimum price and so preventing them from offering discounts. The CMA’s findings are provisional and no final decision has been made about whether there has been a breach of competition law.

[1] Press release CMA of 16 December 2021, ‘CMA provisionally finds lighting firm illegally banned discounts’

On 11 October 2021, banking companies UBS Group AG, UBS AG and Nomura International plc, Nomura Holdings, Inc took the European Commission to court over the imposition of antitrust fines for a cartel in European government bonds.[1] UBS is challenging the approach taken by the Commission in setting the fines, principally arguing that the Commission failed to apply generally applicable EU rules for calculating financial institutions’ turnover, thus breaching the general principles of equal treatment and legitimate expectations. Nomura, on the other hand, is arguing that the Commission erred in the assessment of facts and law, for example as regards its finding of a “by object” breach of antitrust law and its assessment of the alleged period of infringement. In support of the action, the applicants rely on ten pleas in law to argue for the annulment of the fine against the applicants in whole or in part and to substantially reduce the fine imposed on the applicants. The EU General Court has published summaries of the companies’ appeals in the EU OfficialJournal.[2]

[1] Press release European Commission 11 October 2021 ‘UBS, Nomura challenge European government bonds antitrust fines at EU court’

[2] Official Journal of the European Union, 2021/C 412/17.

In Q4, the Commission issued press releases stating that it was conducting unannounced inspections in several sectors:

1. according to a press release of 12 October 2021, the Commission was conducting inspections in locations in several Member States at the premises of companies active in the wood pulp sector[1], due to concerns about possible cartel violations;[2]
2. according to a press release of 25 October 2021, the Commission was also conducting inspections at the premises of a pharmaceutical company active in animal health in Belgium, due to concerns about possible abuse of a dominant market position;[3] and
3. according to a press release of 23 November 2021, the Commission was also conducting inspections at the premises of company active in the defence sector, due to concerns about infringement of the cartel prohibition.[4]

[1]Wood pulp is a dry fibrous material made of wood, which is used to manufacture various paper products.

[2] Press release European Commission 12 October 2021 ‘Antitrust: Commission carries out unannounced inspections in the wood pulp sector’

[3] Press release European Commission 25 October 2021 ‘Antitrust: commission carries out unannounced inspections in the animal health sector in Belgium’

[4]Press release European Commission 23 November 2021 ‘Antitrust; commission carries out unannounced inspections in the defence sector.’

On 19 November 2021, the European Commission issued a press release stating that it had fined Conserve Italia Soc. coop. agricola and its subsidiary Conserves France S.A. (together ‘Conserve Italia’) a total of €20 million for participating in a cartel for the supply of certain types of canned vegetables to retailers and/or food service companies in the EEA.[1] Other cartel members, including Bonduelle, Coroos and Groupe CECAB, settled the case with the Commission back in 2019. As Conserve Italia was the only producer who chose not to settle, the Commission’s investigation against Conserve Italia continued. The cartel lasted for 13 years, with Conserve Italia participating from 15 March 2000 to 1 October 2013. The infringement covered the entire EEA.

[1]Press release European Commission 19 November 2021 ‘Antitrust: commission fines Conserve Italia €20 million for participating in canned vegetables cartel.’

On 2 December 2021, the Commission issued a press release stating that it completed its cartel investigation into the Foreign Exchange (Forex) spot trading market.[1] The Commission fined five banks, UBS, Barclays, BRS, HSBC and Credit Suisse, a total of €344 million for collusive behaviour of traders in charge of G10 currencies, i.e. ten of the most liquid and widely traded currencies worldwide.[2] This was the third leg of the Commission’s investigation into the Forex market. The first two legs of the investigation were concluded with the adoption of settlement decisions in May 2019.[3] We wrote about the earlier settlement decisions in Q2019-2.

[1]Press release European Commission 2 December 2021 ‘Antitrust: Commission fines UBS, Barclays, RBS, HSBC and Credit Suisse € 344 million for participating in a Foreign Exchange spot trading cartel.’

[2] The G10 currencies are AUD, CAD, EUR, JPY, NZD, NOK, GBP, SEK, CHF and USD.

[3] Summary of Commission decision of 16 May 2019, Case AT.40135.

On 10 December 2021, the Commission fined the Spanish company Abengoa S.A. and its subsidiary Abengoa Bionenergía S.A. (together ‘Abengoa’) €20 million for participating in a cartel concerning the wholesale price formation mechanism in the European ethanol market.^[1] Abengoa admitted its involvement in the cartel and agreed to settle the case. Abengoa was formerly one of the biggest ethanol producers in the EU.

[1] Press release European Commission 10 December 2021 ‘Antitrust: Commission fines former ethanol producer Abengoa €20 million in cartel settlement.’

On 10 December 2021, the Commission published the full text of its March 2017 decision on the airfreight sector.^[1] The Commission imposed fines of €776 million on 11 cargo airlines (Air Canada, Air France-KLM, British Airways, Cargolux, Cathay Pacific Airways, Japan Airlines, LAN Chile, Martinair, Qantas, SAS and Singapore Airlines) for colluding over surcharges and thus operating a price-fixing cartel. We wrote about the decision in Q2017-1.

[1] EC decision of 17 March 2017, Case AT.39258 (Airfreight).

The Bundeskartellamt published new guidelines in Q4 of 2021, namely on its leniency programme and on the setting of fines in cartel proceedings.[1] With the new guidelines the Bundeskartellamt is modernising the way it sets fines, with the turnover achieved from the infringement of competition law remaining the key factor. On the whole, the level of fines will therefore not change significantly. The guidelines also explain the new leniency programme, which was first enshrined in law in early 2021 as part of the 10th amendment to the German Competition Act (the GWB), thus implementing the provisions of the European ECN+ Directive. In revising the supplementary guidelines, the Bundeskartellamt provided specific details on how the proceedings are conducted, on the exercise of its discretionary powers in setting the fine and on the amount of the reduction of the fine.

The amendment lays down a number of criteria for setting the amount of the fine. For example, the turnover achieved with the products or services that were the subject of the anti-competitive agreement, has now been legally enshrined as a criterion. In addition, the precautionary measures taken by a company prior to and after the infringement to prevent and uncover further infringements (compliance) may be taken into consideration under certain conditions. Finally, the Bundeskartellamt’s revised guidelines for the setting of fines give additional focus to the practice of the German courts in that in future a reference value will be determined based on the turnover linked to the infringement and the size of the company.

[1] Press release Bundeskartellamt of 11 October 2021, ‘Bundeskartellamt publishes new guidelines on its leniency programme and the setting of fines’.

The Bundeskartellamt has also published new guidelines on the conformity of cooperatives with competition law.[1] The guidelines explain the background, purpose and scope of the prohibition of anti-competitive agreements and outline the possible scope of cooperative activities. According to the president of the Bundeskartellamt, Andreas Mundt, the guidelines are aimed at providing guidance to small and medium-sized cooperatives in particular. The guidelines also consider new forms of digital distribution and cooperation.

[1] Press release Bundeskartellamt of 2 November 2021, ‘Bundeskartellamt publishes guidelines on cooperatives’.

On 15 November 2021, the Commission published a letter addressed to car manufacturers Daimler, VW and BMW regarding its decision of 8 July 2021.[1] In that decision, the Commission fined the car manufacturers for illegally discussing certain aspects and topics in relation to the development of SCR-systems used in diesel passenger cars.[2] In the letter now published, the Commission explains that it takes the view that certain other areas of cooperation concerning the same subject matter, which were not included in the Commission decision, are not capable of restricting competition and are not in breach of competition law. The Commission advised the car manufacturers that it therefore saw no reason to further investigate the conduct described in the letter.

[1] Commission Letter of 8 July 2021, AT.40178_8022302_3050_5.

[2] Commission decision of 8 July 2021, Case AT.40178 (Car Emissions).