Competition Flashback Q2 2022

Bas Braeken & Jade Versteeg & Lara Elzas & Timo Hieselaar & Demi van den Berg & Diederik Simons / 07 Jul 2022

This is the Competition Flashback Q2 2022 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (for the original, click here)

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Overview Q2 2022

  • New Block Exemption and Guidelines on Vertical Agreements;
  • A warning for M&A advisers: ACM and European Commission impose high fines for gun-jumping;
  • ECJ clarifies temporal scope Cartel Damage Directive: no retroactive effect of limitation period and no presumption of damage;
  • Mandatory notification of investments in vital providers and sensitive technology in sight;
  • Enforcement of consumer protection: highest administrative court clarifies framework for unfair commercial practices;
  • A special responsibility for Buma/Stemra: refraining from taking action can also lead to abuse of dominance;
  • ECJ prohibits use of state monopoly privileges for competition in liberalised markets in ENEL and upholds Sumal for abuse cases;
  • ACM gives green light for (sustainable) cooperation between competitors Shell and TotalEnergies in CO2 storage in empty gas fields in the North Sea;
  • ACM tries alternative regulation of fibre optic networks KPN and through commitments in competition investigation;
  • Legal vacuum: highest administrative court quashes minister’s final permit for acquisition of Sandd by PostNL;
  • Qualcomm and optical disk drives: Commission decisions annulled for procedural flaws and lack of actual foreclosure effects;
  • Compensation from ACM after annulled cartel fine decision in civil court only possible to a very limited extent;
  • Free podcast app of public broadcaster NPO Listen does not restrict competition.

 

New Block Exemption and Guidelines on Vertical Agreements

On 1 June 2022, the new Block Exemption on Vertical Agreements entered into force. The Vertical Block Exemption and revised Guidelines introduce new rules regarding, inter alia, online platforms, dual distribution, dual pricing and parity obligations.

Find our previous newsflash on vertical agreements here (Dutch only, English version available on request).

 

A warning for M&A advisers: ACM and European Commission impose high fines for gun-jumping

ACM, decisions of 11 May 2022 and 17 March 2022; General Court of the EU, judgment of 18 May 2022

The past quarter, the Dutch Authority for Consumers and Markets (“ACM”) imposed two fines on companies for gun-jumping. On 17 March 2022, the ACM fined the Dutch trade association for pharmacies (Verenigde Nederlandse Apotheken (“VNA”)), for failing to timely report the acquisition of four pharmacies. Before the acquisition, VNA indicated to the ACM that certain activities of one of the pharmacies would be sold within a year. As a result, the concentration did not meet the relevant turnover thresholds. One year later, the divestment had still not taken place and VNA decided to notify the concentration at last. The ACM subsequently imposed a fine of € 350.000 for failing to notify a concentration in time. According to the ACM, the turnover of activities to be sold may only be deducted from the turnover of the target company if it is unconditionally and legally determined that these activities will be sold on within one year.

On 11 May 2022, the ACM also imposed a fine of over € 1.8 million on Modulaire for failing to report the acquisition of BUKO HV Holding B.V. The acquisition took place on 31 October 2019, but was only reported to the ACM on 7 May 2021. The reason for the late notification was that Modulaire had not taken into account its group turnover when calculating the relevant turnover. As a result, it (incorrectly) believed that it did not meet the turnover thresholds.

The European Commission (“Commission”) has also been cracking down on gun-jumping and violations of the standstill obligation in recent years. In May 2022, the General Court of the EU (“GC”) confirmed the Commission’s € 28 million fine imposed on Canon for the early implementation of the concentration with Toshiba. The GC followed  the Commission and held that interim transactions which were necessary for the ultimate acquisition of control were to be considered as a single concentration together with the ultimate acquisition of control. The Court underlined that, if transactions are taking place which, in whole or in part, in fact or in law, contribute to the change in control, a notification is required prior to implementing those measures.

The assessment of the notification requirement and the timing of the filing of a notification listens very closely. Read our earlier blog about gun-jumping and the­ standstill obligation here.

 

ECJ clarifies temporal scope Cartel Damage Directive: no retroactive effect of limitation period and no presumption of damage

European Court of Justice, judgment of 22 June 2022 (Volvo and DAF Trucks)

In its judgment in Volvo and DAF Trucks, the European Court of Justice (“ECJ”) further clarified the temporal scope of the Cartel Damages Directive. In that case, Spanish company RM sought compensation from Volvo and DAF for damages suffered as a result of the trucks cartel. That cartel took place from 1997 to 2011; the damage proceedings were initiated on 1 April 2018. The Spanish judge referred questions to the ECJ asking which provisions of the Cartel Damages Directive apply to this dispute.

The ECJ reiterates that it follows from Article 22(1) of the Cartel Damages Directive that substantive provisions of that directive do not apply retroactively. Such provisions do therefore not apply to actions for damages in respect of cartels which took place before the implementation of the Cartel Damages Directive (at the latest: 27 December 2016).

The limitation period (Article 10 of the Cartel Damages Directive), as well as Article 17(2) of the Cartel Damages Directive, which contains the presumption that cartels cause damage, are substantive provisions according to the ECJ. This means that these provisions may not be applied to the present claim from RM for damages arising from the trucks cartel. RM can therefore not rely on the presumption of harm laid down in the Cartel Damages Directive.

Pursuant to Article 22(2) of the Cartel Damages Directive, the procedural provisions only apply to disputes initiated after the entry into force of the Cartel Damages Directive, i.e. after 26 December 2014. The ECJ held that Article 17(1) of the Cartel Damages Directive is such a procedural provision. Article 17(1) allows national courts to estimate the damage resulting from a cartel where a precise, concrete estimate is practically impossible or excessively difficult. This provision therefore does apply to RM’s damages claim, as it was brought after the entry into force of the Cartel Damages Directive (i.e. 2018).

 

Mandatory notification of investments in vital providers and sensitive technology in sight

House of Representatives, legislative proposal of 30 June 2021

The Security Review Investment Mergers and Acquisitions Act (“SRIMA”, Wet Veiligheidstoets investeringen, fusies en overnames) was adopted by a large majority in the House of Representatives on 19 April 2022,  and adopted in the Senate on 17 May 2022. The SRIMA follows the European Foreign Direct Investment (“FDI”) screening regulation adopted in 2019 (read our earlier blog on this topic here). The SRIMA aims to protect national security by introducing a mandatory notification and investment test for the acquisition of vital providers and providers of sensitive technology. Under certain conditions, takeovers of vital companies that are active in areas such as heat transport, air transport, ports, banking and recoverable energy or gas storage must be reported to the Investment Assessment Bureau (Bureau Toetsing Investeringen (“BTI”)). The acquisition of (increasing influence in) companies active in the field of sensitive technology, such as dual-use products (products that are suitable for both civilian and military use), is also subject to notification.

The BTI then performs a risk analysis based on national security and determines whether the acquisition activity should be subject to a review decision. In the review decision, the Minister may attach requirements or conditions to the acquisition activity to limit the risks identified.

The SRIMA is expected to enter into force in mid-2022. It is nevertheless already relevant today since it can have retroactive effect. This means that for high-risk recruitment activities carried out after 8 September 2020, yet before the SRIMA entered into force, the Minister may within eight months after the entry into force decide that the recruitment activity should still be reported.

 

Enforcement of consumer protection: highest administrative court clarifies framework for unfair commercial practices

Trade and Industry Appeals Tribunal, judgment of 19 April 2022 (Duinzigt)

On 19 March 2022, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven (“CBb”)) ruled that the ACM wrongfully imposed an order subject to penalty on rental agent Duinzigt for maintaining an unfair commercial practice. Following an investigation into the rental agency sector, the ACM concluded that Duinzigt had violated the prohibition of double remuneration laid down in Section 4:417(4) of the Dutch Civil Code (“CC”). Duinzigt not only charged costs to landlords, but also to consumer tenants. Consumer tenants had to pay both a registration fee of € 40 per year and an administration fee of € 75.

The ACM was of the opinion that the agent acted contrary to the requirements of professional diligence. It impaired the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise. The regulator therefore imposed an order for incremental penalty payments on Duinzigt. Our earlier blog provides a more detailed overview of the enforcement practice of the ACM in consumer law.

Although requiring consumer tenants to pay both registration and administration fees violates the prohibition of double remuneration, the CBb concluded, contrary to the District Court, that this did not amount to an unfair commercial practice. The decisive factor here was that Duinzigt had been transparent about the costs it charged to consumer tenants, hence allowing them to make an informed decision. The costs were included in the general terms and conditions – which were signed by the consumer tenant – and discussed during the intake interview. As there was no unfair commercial behaviour, the ACM was not authorised to impose an order for incremental penalty payments either.

  

A special responsibility for Buma/Stemra: refraining from taking action can also lead to abuse of dominance

Amsterdam Court of Appeal, judgment of 24 May 2022 (Buma Stemra/ABMD)

On 24 May 2022, the Amsterdam Court of Appeal (“CoA”) ruled that the joint collecting society for composers and music publishers (Buma/Stemra) abused its dominant position. According to the CoA, Buma and Stemra have a joint dominant position on the market for copyright licensing in order to make music available for commercial playback (for example in shops). On this market, music streaming services and ABMD members act as suppliers. They pay a fee to Buma/Stemra for the licence to distribute music to commercial customers. Music streaming services, such as Spotify, do not have a licence and are therefore not required to pay any fee. In practice, however, their services are often used to play music on a commercial basis.

The CoA ruled that Buma/Stemra applied dissimilar conditions to equivalent transactions, which falls within the scope of Article 102(c) of the Treaty on the Functioning of the European Union (“TFEU”). In addition, the streaming services themselves did not act against the commercial use of their streaming services. The ABMD members already informed Buma/Stemra of the competitive disadvantage they suffered due to the unfair policy in 2010, yet Buma/Stemra did not follow up on this. The CoA held that, by continuing to apply this system despite the complaints of the ABMD members, Buma/Stemra took for granted that its attitude would distort competition between the ABMD members and the music streaming services. Buma/Stemra was and is the only party able to end this distortion. By failing to do so, it abused its dominant position, according to the CoA.

 

ECJ prohibits use of state monopoly privileges for competition in liberalised markets in ENEL and upholds Sumal for abuse cases

European Court of Justice, judgment of 12 May 2022 (ENEL)

On 12 May 2022, the ECJ delivered a judgment on the preliminary questions referred by the  Italian Supreme Administrative Court concerning an exclusionary abuse by the Italian energy company ENEL. The judgment is particularly relevant in light of the interpretation of the concept of ‘competition on the merits’ by former state monopolists.

In 2018, ENEL was fined € 93 million by the Italian Competition Authority for abuse of its dominant position. ENEL was active in the protected energy market through its subsidiary SEN and therefore held (contact) data of customers. ENEL made commercial offers to these customers in order to persuade them to switch to its subsidiary EE, which operates on the liberalised market. The Italian competition authority considered that ENEL’s conduct was aimed at excluding competitors from the liberalised market. The Italian Supreme Administrative Court then referred a number of questions to the ECJ for a preliminary ruling.

The ECJ reiterates the importance of the concept of ‘competition on the merits’ for dominant undertakings. In that regard, it must be examined, also in cases like this that do not relate to price-setting, whether an equally efficient competitor can apply the same behaviour. The ECJ ruled that such was not the case. It emphasises that a dominant undertaking, upon liberalisation of the market, must refrain from using data to which it had access by virtue of its legal monopoly in order to strengthen or leverage its market position on a neighbouring market.

Furthermore, the ECJ confirms the concept of an undertaking in the context of abuse cases as defined in Sumal: it is the economic unit as such that is liable for an infringement of competition law. The entities comprising that (single) economic unit, such as subsidiaries, are also jointly and severally liable for the infringement, provided that there are economic, organisational and legal links between the infringing and the entity or entities addressed. Read our earlier blog on the concept of undertaking and liability here.

 

ACM gives green light for (sustainable) cooperation between competitors Shell and TotalEnergies in CO2 storage in empty gas fields in the North Sea

ACM, informal guidance of 27 June 2022

In an informal guidance dated 27 June 2022, the ACM notes that Shell and TotalEnergies are permitted to cooperate in the storage of CO2 in empty gas fields in the North Sea. The initiative is part of the project ‘Aramis’ in which the government, Gasunie and Energie Beheer Nederland are also involved. By transporting CO2 through pipes and storing it in old gas fields, the greenhouse gas will not end up in the atmosphere. According to the ACM, the initiative thus contributes to legitimate climate objectives.

The ACM examined whether the cooperation is necessary to get the initiative off the ground and realise the climate benefits. To launch the project, Shell and TotalEnergies must jointly offer the CO2 storage and jointly set the price for it with a view to commissioning the first 20% of the pipeline’s capacity. No agreements will be made for the remaining 80%. In its assessment, the ACM applied its (currently second draft of the) Guidelines on sustainability agreements. The ACM concludes that the advantages for consumers and society outweigh the disadvantages of the restriction of competition. The ACM thereby applies a broader test than the Commission, which only looks at the benefits for direct consumers. Given the innovative nature of the project, it is likely that the Commission has also have given the go.

This is only the third time that the ACM applies its draft Guidelines on sustainability agreements. Earlier, the ACM applied the guidelines to test a price agreement for CO2 to stimulate sustainable investments and a collaboration for the purchase of electricity from a windmill park.

 

ACM tries alternative regulation of fibre optic networks of KPN and Glaspoort through commitments in competition investigation

ACM, decision of 15 April 2022; District Court of Rotterdam, judgment of 31 March 2022

On 15 April, the ACM published a draft decision including the commitments offered by KPN and Glaspoort for access to their fibre optic networks. Since the annulment of the Market Analysis Decision on Wholesale Fixed Access by the CBb in 2020, KPN and Glaspoort have voluntarily provided access to their fibre optic networks. In 2020, the ACM launched an investigation to assess whether (re)regulation of access is necessary under the Telecommunications Act (“TA”) and/or intervention is required under the Dutch Competition Act (“DCA”).

Given the current levels of KPN’s wholesale tariffs, the ACM foresees, inter alia, that operators with access to KPN and Glaspoort will offer lower speeds and/or higher prices at a retail level. With the commitments to reduce the wholesale prices for access to fibre networks (ODF-access (FttH)), the ACM believes that these risks will be mitigated. Several third parties, such as T-Mobile, still consider that the tariffs are too high. In addition, the commitments only relate to the conditions that KPN and Glaspoort set centrally (high) in their networks, and do not specifically regulate the tariffs for wholesale broadband access. It is not yet clear whether the ACM will refrain from taking a new market analysis decision on the basis of chapter 6a TA, and/or whether or not these commitments will indeed be declared binding (in full).

Earlier this year, T-Mobile already appealed against the merger approval decision of the ACM concerning joint venture Glaspoort. T-Mobile primarily argued that the creation of Glaspoort did not amount to a concentration, since KPN and APG do not exercise joint control over Glaspoort, but KPN exercises sole control instead. This would mean that the regulatory framework applicable to the KPN group would automatically apply to Glaspoort as well. In light of relativity, the Rotterdam District Court considered that the strategic interest of T-Mobile not to be protected by the merger control regime, cannot be taken into account in this case. In fact, it is in the interest of competitors that their position on the market is protected and that the ACM substantially assesses the effects of the concentration. In addition, the ACM rightly saw no indications for a serious impediment of competition by the creation of Glaspoort. The District Court held that T-Mobile’s argument regarding the (accelerated) phasing out of copper networks and the risk of strategic overbuild of fibre optic networks is an uncertain circumstance, and not a (direct) consequence of the concentration as such.

 

Legal vacuum: highest administrative court quashes minister’s final permit for acquisition of Sandd by PostNL

Trade and Industry Appeals Tribunal, judgment of 2 June 2022 (PostNL/Sandd)

On 2 June 2022, the highest administrative court has annulled the ministerial approval for the realisation of the concentration between PostNL and Sandd.

In the PostNL/Sandd merger decision, the ACM refused the application for a licence in the second phase, after having determined that PostNL’s acquisition of Sandd would strengthen PostNL’s dominant position and lead to a 30-40% price increase for business senders of postal mail. The market investigation of the ACM also showed that, although the volume of postal mail will decrease, a substantial amount will remain in the long run. Without the acquisition, the ACM expects Sandd to remain active and PostNL to continue to profitably provide universal postal services (“UPS”).

PostNL subsequently submitted an application for a licence to the Minister under Article 47 paragraphs 1 and 2 DCA and also lodged an appeal against the second phase decision of the ACM. The handling of that appeal has been suspended until an irrevocable decision has been taken on the licence from the Minister (‘priority rule’ pursuant to Article 47, paragraph 3 DCA).

In its decision, the Minister identified four important reasons of general interest that outweigh the expected impediments of competition as identified by the ACM. Three of these four reasons are based on assumptions and propositions about (the future of) the postal market, which are contrary to the ACM’s investigation. For example, the Minister expects that the ongoing decline in volume will lead to the disappearance of the postal market and that the UPS can no longer be carried out on a commercial basis.

In the appeal before the Rotterdam District Court against the Minister’s decision, the court ruled that the minister had insufficiently substantiated his assumptions and institutions that differed from those of the ACM. The court therefore annulled the decision. On appeal, the CBb took a different approach and discussed the systematics of the DCA. It considered that it is clear from the legislative history that, when taking a decision on an application pursuant to Article 47 DCA, the Minister is not only bound by the (significant) impediment(s) of competition identified by the ACM, but also by the entire factual and competition law assessment of the ACM on which this is based (since these form an inseparable whole). According to the CBb, it also follows from the ‘priority rule’ that the Minister may not form his own opinion on the facts, assumptions, analyses and conclusions.

Since the Minister should have taken the ACM’s second-phase decision as a starting point, the three reasons given by the Minister that contradict the ACM’s assessment cannot constitute compelling reasons in the public interest as referred to in Article 47(1) and (2) DCA. The remaining (fourth) reason, namely the protection of employees, does not carry sufficient weight compared to the expected (significant) impediments to competition. For this reason, the CBb annulled the decision of the Minister (and its replacement decision which was based on the same reasons) and decided to settle the matter itself by rejecting the request for a licence.

This leads to the unusual situation that the long-standing concentration between PostNL and Sandd has not received a licence from either the ACM or the Minister. However, the PostNL/Sandd saga has not ended yet: it is now up to the District Court in Rotterdam to rule on PostNL’s appeal against the ACM’s second-phase decision.

  

Qualcomm and optical disc drives: Commission’s fining decisions annulled due to procedural errors and lack of actual foreclosure effects

General Court of the EU, judgment of 15 June 2022 (Qualcomm); European Court of Justice, judgment of 16 June 2022 (Optical disk drives)

On 15 June 2022, the GC annulled the fine of almost € 1 billion that the Commission imposed on chipset developer Qualcomm. In 2018, the Commission established that Qualcomm abused its dominant position by making incentive payments to Apple on the condition that it purchased LTE chipsets exclusively from Qualcomm (exclusivity payments).

The GC found that the Commission wrongfully concluded that the payments in question had restricted competition. Although the payments might have reduced Apple’s incentives to switch to competing suppliers, the Commission explicitly acknowledged in the decision that for iPhones – the vast majority of its sales – Apple had no technical alternative to the LTE chipsets. The undisputed fact that there was no technical alternative on the relevant market is a relevant factual circumstance which must be taken into account when analysing the capability of the payments concerned to have foreclosure effects. The fact that Apple’s internal documents did somehow refer to a reduced incentive for a specific, limited group of iPad models is insufficient to support the foreclosure effects for (both) iPhones and iPads. The Commission therefore did not take all relevant circumstances into account when assessing Qualcomms behaviour.

In addition, the GC reveals a number of procedural irregularities. It emphasises that the Commission must record the precise content of all interviews conducted for the purposes of collecting information relating to the subject matter of an investigation. In the underlying case, the Commission wrongly omitted to record the meetings and conference calls held with third parties. Moreover, the GC notes that the contested decision limits itself to finding abuse on only one relevant market, whereas the Statement of Objections (“SO”) covered several relevant markets. Although this does not in itself imply a procedural error, the amendment of the SO (potentially) affected the relevance of the economic analysis and data submitted by Qualcomm. The Commission should therefore have given Qualcomm the opportunity to be heard and to adjust its analysis if necessary. With these two procedural errors, the Commission has violated Qualcomm’s rights of defence. The Court annulled the decision in its entirety.

Recently, the ECJ also underlined the importance of the content of the SO in its judgment regarding the optical disc drives cartel. On 16 June, the ECJ ruled on the importance of a proper preparation in the administrative procedure. In the cartel decision – addressed to Sony, Quanta and the two joint ventures of Toshiba and Samsung – the Commission found that there was a single continuous infringement as well as a number of separate infringements. However, the SO shared with the cartelists only concerned the single continuous infringements and did not mention the existence of separate infringements. It therefore amounted to an addition to the objections the Commission previously shared with the cartelists. Unlike the GC, the ECJ concluded that the cartelists’ rights of defence had been violated as these separate infringements had not been sufficiently investigated and qualified by the Commission in the SO.

 

Compensation from ACM after annulled cartel fine decision in civil court only possible to a very limited extent

District Court of The Hague, judgment of 20 April 2022 (Midac/ACM)

The annulment of the cartel fine that the ACM had imposed on Midac for its participation in the traction batteries cartel by the Rotterdam District Court (20 June 2019), was recently given a civil law dimension. Midac claimed compensation before the civil court for the costs of legal assistance as well as internal costs in the preparatory, objection and appeal procedures. It also claimed compensation for non-material damage resulting from the failure to remove Midac’s name (on time) in the ACM’s public press releases about the traction batteries cartel.

With regard to the costs incurred by Midac in the preparatory procedure, the District Court of The Hague held that the investigation by the ACM was not unlawful. After all, there were sufficient grounds for the ACM to investigate the possible involvement of Midac in the cartel. The fact that the unlawful conduct of the State has been irrevocable established by the judgment of the Rotterdam District Court (the ACM refrained from appealing that judgment) does not alter this conclusion. With regard to the costs of administrative objection and appeal procedures, the District Court ruled that only the administrative courts are authorised to rule on this (on the basis of the Legal Costs (Administrative Law) Decree). To this extent, Midac’s claim is inadmissible, according to the District Court.

Finally, the Court considered that, although the publication of the decision to impose a fine is not unlawful as such, the ACM should have amended the content of the publication of its own accord within a short period of time after the annulment by the Rotterdam District Court. As this took place much later – and only at the request of Midac – the Court ordered the State to pay compensation for immaterial damage of € 2.500.

 

Free podcast app of public broadcaster NPO Luister does not restrict competition

ACM, Market Impact Analysis of 8 February 2022 (NPO Luister)

On 8 February the ACM issued its advice to the Minister of Education, Culture and Science about the new podcast app, NPO Luister, of the Dutch Public Broadcaster (Nederlandse Publieke Omroep (“NPO”)) in which all podcasts of NPO will be offered through one channel. The ACM expects that the effect of the new channel on the Dutch market will be marginal. First of all, the market for podcasts is developing rapidly. Moreover, NPO Luister will only offer existing content in a bundled manner and the content will also remain available for other (commercial) supply channels. The market situation with NPO Luister will therefore hardly differ from a situation without the new supply channel.

The ACM nevertheless advises the Minister to keep an eye on whether NPO will start to offer the content exclusively in the future, and to ensure effective competition in the market for distribution of audio on demand content.

 


 

For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

 

Bas Braeken (Partner) | Jade Versteeg (Attorney-at-law) | Lara Elzas (Attorney-at-law) | Timo Hieselaar (Attorney-at-law) | Demi van den Berg (Attorney-at-law) | Diederik Simons (Paralegal)

 

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