Two-minute Recap of Competition Law Matters Around the Globe – February 2023

Altice gun-jumping fine challenged before the European Court of Justice

In 2018, the European Commission (“Commission”) fined French telecoms operator Altice a sum of EUR 124.5 million for breaching the notification and standstill requirements in its acquisition of PT Portugal. The General Court, however, reduced the fine by 10% in February following Altice’s appeal on the grounds that the Commission failed to justify the fine amount. However, stating that Altice did interfere in PT Portugal business, which suggest a “classic gun-jumping case”, the Commission defends that EUR 62.25 million for each infringement was proportionate and ensured deterrence.

BMW and Volkswagen appeal CMA’s extraterritorial document request

In December 2022, the UK’s Competition and Markets Authority (“CMA”) fined BMW GBP 30,000 and a daily penalty of GBP 15,000 for failing to comply with the information request by the authority as part of an on-going investigation concerning a suspected collusion in automotive recycling. BMW and Volkswagen appealed the CMA’s decision and the Competition Appeal Tribunal (“CAT”) stayed the penalty on the grounds that issuing a notice and imposing a fine in respect of foreign-domiciled companies with no presence in the UK in relation to the production of specified documents and information held by those companies outside the jurisdiction was ultra vires. The CMA, however, argues that CAT’s ruling risks undermining its ability to investigate.

European Court of Justice: Splitting the costs between claimant and defendant when a damages claim is only partially accepted is in line with EU law

In July 2016, the Commission imposed a EUR 2.92 billion fine on truck manufacturers DAF, Daimler, Iveco, and Volvo/Renault for running a cartel in the heavy and medium heavy trucks market between 1997 and 2011. The truck owners have faced numerous actions in Spain on overcharge payment claims as a result of the cartel. Among them, an individual and a Valencian transport company, who purchased 12 trucks during the infringement period, filed a suit against Daimler before the Valencia commercial court and requested compensation. The Valencia judge sent a request for guidance to the ECJ. The ECJ in February ruled that the damages directive corrects the power imbalance between parties. Furthermore, the ECJ considers that if it is practically impossible or excessively difficult to quantify the harm and the claimant exhausts the tools to demonstrate it, a national judge is allowed to make an estimation of the damage.

Peruvian competition authority fines individuals for the first time

Peru’s National Institute for the Defence of Competition and the Protection of Intellectual Property (Indecopi) found that Yura, the largest cement producer in South Peru, and Racionalización Empresarial, a logistics company that was in the same corporate group, acted together to foreclose competition. It is concluded that by restricting sales of cement to distributors that sold competing products and not offering logistics services to customers that also transported competing products, they prevented entry into the market and illegally maintained prices. Indecopi imposed a fine of EUR 14.8 million on the companies and EUR 296,000 on nine Yura executives, as they threatened and sanctioned distributors that sold competitors’ products. 

Novartis and Roche win appeal in France

In a case that was also assessed by the competition authorities in Turkey, Italy and Belgium, the Paris Court of Appeal decided to annul the Autorité de la concurrence decision to impose a total fine of EUR 444 million against Novartis and Roche. In its fining decision, France’s competition authority concluded that Novartis and Roche abused their collective dominance to discourage people from cheaper medicine used for the treatment of age-related macular degeneration (AMD) from 2008 to 2013. The authority stated the companies shared misleading information about the safety risks to stop Avastin, a drug that was mainly developed for certain types of cancer, from being used as an off-label AMD treatment, as it is a significantly cheaper option than Lucentis (the reported difference between the drugs being EUR 30-40 to EUR 1,160 per injection at the time). Furthermore, Roche was accused of delaying a trial to test Avastin as a possible AMD treatment and seeking the relevant marketing authorisation.

The court however, agreed with the companies that the drugs are not competing as they cannot be substituted for each other under Bertrand Law, and the companies’ cautions against Avastin did not contain factual errors as there was not a sufficient amount of scientific studies. The court found the allegation that Roche delayed studies and additional authorisations for Avastin irrelevant as they would not have anticompetitive effects. It should also be noted that the court rejected the claims that the competition authority does not have jurisdiction over the case.

Lukoil fined in Bulgaria

Bulgaria’s Commission for the Protection of Competition imposed its highest-ever fine on Lukoil for behaviour that was concluded to be a margin squeeze in the wholesale market for motor fuels. The authority stated that Lukoil, which “owns half of the wholesale fuel market in Bulgaria and the largest oil refinery in the Balkans,” removed certain discounts granted to wholesale purchasers and sold fuel to its competitors at a price almost identical to the prices it applies at the retail level. The authority found that such behaviour amounted to limiting competition to strengthen its dominance in the market.

A new decision in the European Super League case

The Provincial Court of Madrid found that UEFA and FIFA’s conduct with regards to the clubs that attempted to join the European Super League can be seen as an abuse of dominance and as such, it temporarily prohibited them from issuing any penalties on the clubs. While the Commercial Court of Madrid had imposed such an injunction in April 2021, a different panel of the court decided to lift this injunction a year later, before the ECJ issued its ruling on the questions referred by the Commercial Court judge earlier. In December 2022, EU advocate general Rantos stated in his opinion that FIFA and UEFA requiring prior approval for any new competition and their threat of sanctions are not prohibited under EU competition law and that they have legitimate objectives in doing so. In contrast to AG Rantos’ opinion, the Provincial Court of Madrid found that UEFA and FIFA cannot justify their actions by claiming they are protecting European football and that even their threats were enough to intimidate clubs from being able to leave the structure and a new competitor to be able to enter the European football market.

In any case, it should be underlined that AG Rantos has also stated that UEFA is the sole organiser of all major interclub football competitions at the European level and as such it has to “ensure that third parties are not unduly denied access to the market to the point that competition on that market is thereby distorted”.

Tagged with: Gen & Temizer | Özer, Bulut Girgin, Simru Tayfun, Orçun Horozoğlu, Competition