The crackdown on cartels is continuing unabated. The Netherlands Authority for Consumers and Markets (ACM) is expected to continue to focus on prohibited resale price maintenance and wage and buyer cartels. ACM is also busily creating room for cooperation in the field of sustainability, while the Commission is revising its guidelines on cooperation between competitors. The Commission is also reviewing the EU competition enforcement framework. New regulations are on the horizon. And may FIFA/UEFA block the launch of a new European Super League or not?
ACM
Sustainability cooperation is high on the agenda of the competition authorities. ACM recently favourably assessed a number of cooperation plans in the field of sustainability. It announced, for instance, that Shell and TotalEnergies may cooperate in the field of CO2 storage. The cooperation is necessary to get the initiative off the ground and to achieve climate benefits, according to ACM.
Earlier this year, ACM also welcomed two partnerships between competing companies in the energy sector. The first initiative involved the joint purchasing of electricity from a wind farm. The second related to agreements on charging the same price for CO2 in calculation models for grid investments by grid operators. ACM also recently indicated that it did not object to agreements between garden centres on combating illegal pesticides. ACM recently approved the agreement between soft drink suppliers Coca-Cola and Vrumona on the one hand and supermarkets Albert Heijn and Jumbo on the other hand to put an end to the use of plastic handles on multipacks of soft drinks. Although this approval was not necessary, because no restriction of competition was involved, it demonstrates that ACM is happy to join in companies’ though processes in this area.
However, the Dutch government and ACM fundamentally differ with the Commission on the room that should be given to sustainability initiatives. The government and ACM are of the opinion that a cooperation agreement should be permissible if the overall sustainability benefits for society at large outweigh the disadvantages for the users of the product in question. ACM also included this in its draft Guidelines on Sustainability Agreements. The Commission is taking a stricter approach and is considering only the sustainability benefits for the user of the product in question. EU Commissioner Vestager has already announced that the Commission is not willing to be more lenient on this point. The Commission recently published a report on how sustainability benefits from anti-competitive agreements should be classified.
In politics, the More Room for Sustainability Initiatives bill is still on hold (see here, here and here). In a parliamentary letter, Minister Vijlbrief writes that the Commission’s review of horizontal guidelines will first be awaited. They are expected by the end of the year and are likely to offer more room for sustainability initiatives. ACM chairman Martijn Snoep has urged the Commission in several speeches (see here and here) to leave more room for cooperation in its guidelines. ACM also recently provided more guidance on the possibilities for cooperation in the agricultural sector in its Guidelines regarding Collaborations between Farmers (see also this blog on this subject).
ACM will most likely continue to focus on prohibited resale price maintenance. After previously imposing a record fine on Samsung (see here and here), for instance, ACM has announced that it has warned dozens of suppliers that they may have exerted prohibited influence on the sales prices of their products sold by retailers. Samsung has appealed the fine. The decision on appeal is expected in the course of this year.
ACM recently published its revised Guidelines regarding Arrangements between Suppliers and Buyers. They describe what a supplier may or may not agree on with its distributors. The reason for these revised Guidelines was the new European Block Exemption and Guidelines for distribution agreements (see this blog). One of the main changes in the Guidelines relates to the broad rules on dual pricing. A supplier may now charge different prices for products that the retailer sells online or in a brick-and-mortar shop. The Guidelines furthermore allow room for dual distribution and the exchange of information between the supplier and its buyer.
ACM previously announced that it is on the lookout for prohibited anti-competitive agreements in the labour market. Last year already, it launched a preliminary investigation into a possible wage cartel among supermarkets. There were indications that supermarkets had made mutual agreements on limited wage increases. In early 2022, ACM warned companies in the energy and technology sector that no-poach and no-hire agreements are prohibited (Article 6 of the Mededingingswet (Competition Act) and Article 101 of the Treaty on the Functioning of the European Union). In a speech, Snoep outlined what EU competition authorities should focus on:
- wage cartels between companies;
- no-poach and no-hire agreements among employers;
- mergers leading to a monopsony (only one buyer in the market); and
- rate agreements among self-employed persons (see this blog).
So employers and self-employed persons be warned! See also this blog.
ACM is also persisting in its supervision of “classic” cartels. It is investigating, for instance, a possible buyer cartel in the street furniture market. An investigation into a buyer cartel in the agricultural sector and a possible cartel in the food processing sector is also believed to be ongoing. More may become clear on this point in the course of this year.
Commission
There’s considerable unrest at European level too. The Commission has recently conducted a remarkable number of dawn raids. They have taken place in the natural gas sector, at water networks and treatment plants in the car industry, in the fashion industry, at a home, and at online meal delivery companies. The Commission is also investigating companies that may have colluded on ethanol benchmarks. In its preliminary findings, the Commission states that Alcogroup and Agroetanol coordinated their trading conduct and agreed to limit the volumes of ethanol, which artificially increased the price benchmark. The Commission is furthermore investigating whether Google and Meta (Facebook) entered into online advertising arrangements. Another investigation focuses on the possible restriction of cross-border and online sales by fashion house Pierre Cardin.
The Commission has also imposed several fines, including a €31.5 million fine on two metal packaging producers. The companies exchanged production volumes and prices. The Commission also remains alert to the M&A practice. It (again) prohibited a non-compete agreement between a Portuguese and a Spanish telecoms provider, Pharol and Telefónica, in Telefónica’s acquisition of Brazilian operator Vivo. The non-compete agreement between the parties could not be considered an ancillary restraint because it was unrelated to Telefónica's acquisition of the Brazilian party. This resulted in a fine of €79 million being imposed on the parties.
The new Vertical Block Exemption Regulation and associated guidelines entered into force on 1 June 2022. We addressed it in detail in a separate blog. The Commission is currently reviewing the horizontal guidelines, which describe how the cartel prohibition should be applied to cooperation among competitors. As stated above, more room must be created for sustainability initiatives. The Commission is also expected to provide more guidance on anti-competitive agreements in the labour market (see also this blog). The Commission has furthermore launched a consultation on Regulation 1/2003, which deals with the implementation of European competition rules. The Commission believes that innovation is necessary in light of the digitalisation of society.
Case law
In the course of next year, the Rotterdam District Court may rule on the €82 million mega fine imposed on cigarette manufacturers by ACM for exchanging cigarette prices via their customers (the hub-and-spoke cartel). Earlier this year, the court upheld the fine imposed by ACM on two roofing contractors for making agreements in a tender process. The court also rejected Samskip’s appeal, ruling that ACM had indeed correctly concluded that Samskip was guilty of coordinating rates or exchanging sensitive competitive information in the field of the storage of fish in cold stores. It is likely that the Trade and Industry Appeals Tribunal (CBb) will have to pass (final) judgment in these three cases.
An interesting development is that the court has ruled in several cases that ACM was justified in rejecting a request for enforcement or in ceasing its investigations. The rulings related to a complaint about abuse of a dominant position by the Big Four and abuse of a dominant position by the administrator of the .nl internet domain, about possible agreements between Philips and suppliers of sleep apnoea devices, and about possible collusion by health insurers against pharmaceutical company Leadiant. The CBb may have to look into this matter too, but it is unlikely to blow the whistle on ACM.
It is remarkable that ACM itself is facing a penalty for the first time. The Rotterdam District Court ruled that ACM failed to take a decision in a cartel investigation within the timeframe set: ACM had not taken a decision within 13 weeks after the report. The reason why the time limit was exceeded was that a data room procedure had been offered in that case and the companies involved had started civil proceedings in response to the dawn raids, according to ACM. Additional investigations had also taken place in response to the views of the companies concerned. Because the case was likely to be fairly complex, extensive and laborious, ACM has until 31 December 2022 to take a decision. If ACM has not decided by then, it will forfeit a penalty for each day by which the decision period is exceeded.
Another trend appears to be bringing a claim for damages against ACM after a decision has been overturned in court. The court awarded damages, for instance, to a traction battery supplier because ACM had failed to timely remove the publication of the annulled penalty decision from its website. An appeal by the real estate agents is still pending against the Court of The Hague’s ruling that ACM did not have to pay additional damages following the cartel fines that it had wrongly imposed.
The cartel prohibition is likely to be regularly relied on in civil proceedings also in the coming period. The District Court of The Hague, for instance, recently ruled that a health insurer's rebate policy was not in breach of the cartel prohibition, among other things. The Amsterdam Court of Appeal had earlier confirmed that retail chain Hudson's Bay's request for a preliminary witness examination on the grounds of alleged cartelisation by its former landlords was rightly rejected. The Court of Appeal ruled that the request was contrary to the due process of law and failed on the grounds of other compelling objections. Hudson's Bay has apparently filed an appeal to the Supreme Court.
The Netherlands is meanwhile becoming an increasingly attractive forum for damages claims (see also this blog). A case in point is the recent (interlocutory) judgment of the Amsterdam District Court on the damages claim filed against the truck cartel. The court confirmed that damages claims with claimants from multiple EU member states may be adjudicated under Dutch law. The court had earlier rejected the truck manufacturers’ argument that the cartel could in no event have harmed customers (see this blog). An eagerly awaited judgment is the Supreme Court’s ruling on whether a Dutch court has jurisdiction over a Greek claim against a foreign subsidiary of parent company Heineken following a decision by the Greek competition authority. Advocate General Drijber recently concluded, based on an exposition on the competition-law concept of an “undertaking” and the Sumal judgment, that the Dutch court has jurisdiction.
Interesting rulings are also expected at the European level. Advocate General Kokott has already stated, for instance, that in her opinion the General Court wrongly ruled that medicine producer Servier did not enter into anti-competitive agreements with producer Krka (see also this blog). According to the General Court, no prohibited payment was made to Krka to compete with Servier, for which the Commission had previously imposed a €330 million fine. The Court of Justice of the European Union (the ECJ) will rule on this shortly.
Many competition issues are also pending the field of sports (see also this blog). The General Court previously ruled that ISU, the international skating federation, abused its dominant position by prohibiting skaters from participating in competitions organised by other parties. The ISU appealed. The ECJ’s ruling is expected soon. Earlier this year, the proposed superstar football league, the Super League, gave rise to some (legal) controversy. For now, this plan for a separate league appears to be off the table, but a number of clubs are still toying with the idea. A Madrid court has in any event requested the ECJ to issue a preliminary ruling on whether FIFA and UEFA’s blocking of the launch of the Super League violates competition rules.
The cartel prohibition will continue to evolve significantly in the coming period in light of the active competition authorities, new legislation and court rulings. We will of course keep you informed of the developments.
Information on dawn raids by ACM can be found at invalacm.nl
For more information on (prohibited) resale price maintenance, listen to our podcast via Spotify or Apple Podcasts.
