Overview   Cartels

The European Commission has informed several manufacturers of construction chemicals active in France, Germany and Spain as well as three national trade associations, of its preliminary view that they have breached EU antitrust rules by colluding to increase prices in the supply of chemicals for cement, concrete and mortar.

The Commission takes note of today’s preliminary ruling of the Court of Justice in Joined C-258-260/23 Imagens Médicas Integradas e o.
The Court considers that, in principle, no priori judicial authorization is required for competition authorities to seize professional email correspondence in the context of inspections in business premises. The protection of individuals against abuse and arbitrariness however requires a legal framework and strict limitations, and safeguards in the form of a full ex post judicial review.
The Court expressed a reservation that, where such documents are seized from devices belonging to individuals who use the devices for both private and professional purposes, access may constitute a serious, or even particularly serious, interference with the fundamental rights of the individuals concerned. In such cases, potentially after the devices have been sealed, access must be subject to prior review by a court or by an independent administrative body.
The Commission will assess the concrete implications of the ruling on its inspection powers and practice.
See also Curia's press release (in PDF format).

The CJEU held that the Meca-Medina exception which under certain conditions exempts agreements between undertakings from the prohibition of anti-competitive agreements (laid down in Article 101 TFEU) can apply, in principle, to regulations adopted by a sports federation such as the German Football League which, whilst addressing its members, regulate the use of the services of third-party undertakings not belonging to that federation, such as players' agents.
The fact that regulations adopted by an association such as the DFB produce some of their effects, not only with regard to its members, but also with regard to third party undertakings which maintain relations with those members, may prove to be necessary in order to pursue one or more legitimate objectives in the public interest which are not, in themselves, anti-competitive.
In order for the Meca-Medina exception to apply, the referring court will have to determine that a) the regulations at issue do not restrict competition by object and b) are justified by the pursuit of a legitimate objective in the public interest in the light of which they appear, strictly speaking, appropriate, necessary and proportionate. Those conditions need not necessarily be assessed in relation to each of the provisions of the regulations at issue, but in relation to a set of provisions pursuing a distinct objective or producing a distinct effect.
See also Curia's press release (in PDF format).

The European Commission has informed several companies active in the synthetic turf sector of its preliminary view that they have breached EU antitrust rules by colluding to distort competition in synthetic turf for sports pitches in the Netherlands and Germany.

The Commission takes note of the judgment of the General Court dismissing the action for annulment brought by WTW Ahlers in case AT.40642 – Pierre Cardin.
The Court confirms the Commission’s approach to the calculation of the fine, including the mode of application of the 10% turnover cap foreseen in Article 23(2) of Regulation 1/2003, which is a mechanism to ensure that the fine is proportionate.

The judgment confirms that the right to compensation for infringements of competition law includes the payment of interest. This right to receive interest existed already before its codification in the Damages Directive.
The payment of interest shall compensate for the adverse effects resulting from the lapse of time since the occurrence of the harm caused by the infringement until the time when compensation is paid.

The judgment confirms that the no-poach agreement at issue between professional football clubs constitutes a manifest restriction of a competitive parameter (recruitment of players) which plays an essential role in high-level sport. Such agreements must be categorised, in principle, as having as their object the restriction of competition.
However, the Court notes that the agreement at issue occurred in the very specific context brought on by the COVID-19 pandemic. Although the occurrence of the pandemic is not per se such as to justify making an exception to the prohibition of anticompetitive conduct, even in the field of sport where also the stability of the teams is important, the Portuguese court will have to take account of those circumstances for the purpose of determining whether that agreement has as its object the prevention, restriction or distortion of competition.
The Court confirmed that the Wouters and Meca-Medina case law (which under certain conditions exempts agreements that pursue legitimate objectives from Article 101 TFEU) does not apply to agreements that restrict competition by object. Where the agreement in question cannot be categorised as a by object restriction, it can be justified by the pursuit of a legitimate objective in the public interest, in view of which it is appropriate, necessary and proportionate.
See also Curia's press release (in PDF format).

The European Commission has today adopted the revised Technology Transfer Block Exemption Regulation ('TTBER') and Guidelines on the application of Article 101 of the Treaty to technology transfer agreements ('Guidelines'), following a thorough review of the rules that have been in place since 2014.
See also COMP Flash on Updated EU competition rules for technology licensing agreements.

The European Commission is carrying out unannounced antitrust inspections in two Member States at the premises of a company active in the chocolate confectionery sector.

A paper co-authored by DG Competition has been featured among this year’s winners in the academic category “Concerted Practices” at the Concurrences Antitrust Writing Awards. The awarded article, “Public Communication and Collusion: New Screening Tools for Competition Authorities,” explores how innovative analytical tools can help detect collusive behavior in public corporate statements.

The Commission takes note of the judgments by the Court of Justice dismissing almost all appeals brought by the airlines against the General Court’s judgments of 2022. In its judgments, the Court of Justice fully upholds the Commission’s and General Court’s assessment of the cartel conduct concerning the provision of airfreight services on a global basis and the Commission’s jurisdiction to prosecute international cartels. The Commission takes note of the decision of the Court of Justice to set aside the judgment of the General Court addressed to SAS and reduce the amount of the fine imposed on SAS.
See also judgment in SAS Cargo Group and Others v Commission.

The Commission takes note of the judgment by the General Court, which confirms the Commission’s decision of 7 December 2023 against Lantmännen for its participation in the Ethanol Benchmarks cartel.
Today’s judgment brings further clarity as regards staggered hybrid cases.
In its judgment the Court confirms that the Commission can adopt settlement decisions against one single company, while the other parties to the agreement continue being investigated under the ordinary procedure without this constituting a breach of their rights of defence.
In addition, the Court confirms that the principles of presumption of innocence and the Commission’s duty of impartiality have been fully adhered to in this case.

The Commission takes note of the preliminary ruling of the Court of Justice of the European Union clarifying that the possibility for a national competition authority to unilaterally extend, by reasoned decision subject to judicial review, the deadline initially set for the closure of its administrative proceedings is not, in itself, contrary to the right to good administration, Article 47 of the European Charter of Fundamental Rights, provided that the postponement does not result in failure to observe the reasonable period within which the investigation must be concluded.
The Commission also takes note of the confirmation of the Court of Justice of the European Union that the reasonable duration of administrative proceedings must be assessed in light of all the relevant circumstances specific to the individual case and that failure to observe a reasonable duration of the proceedings is capable of justifying the annulment of the decision only if the undertaking demonstrates to the requisite legal standard that it affected its rights of defence.

The European Commission has fined three automotive starter battery manufacturers, Exide, FET (including its predecessor Elettra) and Rombat, as well as the trade association EUROBAT, a total of around €72 million for participating in a long-running cartel concerning automotive starter batteries, together with Clarios (formerly JC Autobatterie), in breach of EU antitrust rules. This cartel restricted competition and may have led to higher prices for the manufacturing of cars and trucks in Europe.

The Commission takes note of today’s judgment of the General Court dismissing Bategu’s action for annulment against a Commission decision adopted on 15 Februrary 2023 reject-ing a complaint.
In its decision, the Commission had rejected Bategu’s claims that rolling stock original equipment manufacturers coordinated their behaviour with the purpose of boycotting Bategu’s products and delaying the implementation of European fire protection standard EN 45545-2. The Commission also rejected the claim that the original equipment manufacturers abused their collective dominant position to do the same.

The European Commission has opened a formal antitrust investigation to assess whether Deutsche Börse and Nasdaq have breached EU competition rules by coordinating their conduct in the sector for listing, trading and clearing of financial derivatives in the European Economic Area. Nasdaq and Deutsche Börse are financial services providers operating large exchanges in the financial derivatives sector.

The Commission takes note of today’s preliminary ruling of the Court of Justice in Case C 2/23.
In particular, the Court held that EU law does not preclude mechanisms for administrative assistance that would require a national competition authority to transmit its files, including leniency statements and settlement submissions and the information obtained from them, to the national criminal authorities, upon request, provided that such mechanisms do not jeopardize the effectiveness of leniency programs and settlement procedures as tools to detect and establish competition law infringements.
The Court however clarified that once leniency statements and settlement submissions end up in criminal files, pursuant to Article 31(3) of the ECN+ Directive, access to these statements and submissions can only be granted to persons under investigation for the purposes of exercising their rights of defence, in particular where complaints against those persons are based on information contained therein. Access cannot be granted to other parties, in particular injured parties who seek compensation for the harm caused by the competition law infringement. The Court further clarified that this access limitation does not extend to documents and information provided in order to explain, specify in detail and prove the content of leniency statements or settlement submissions.
Today’s preliminary ruling by the Court of Justice importantly clarifies the scope of the protection afforded by Union competition law to leniency statements and settlement submissions. It contributes to the protection of leniency programmes which are a key tool for the effective enforcement of competition law, while allowing for administrative assistance between national law enforcement and regulatory authorities and guaranteeing the rights of defence of defendants in proceedings that do not relate to the enforcement of competition law.

The Commission takes note of the judgment of the Court of Justice of the European Union dismissing Teva’s and Cephalon’s appeal against the 2023 judgment of the General Court. In its 2023 judgment, the General Court dismissed an action for annulment against a 2020 Commission decision.
In its 2020 decision, the Commission imposed a total fine of around €60.5 million on Teva and Cephalon for agreeing to delay the market entry of a generic version of Cephalon's drug for sleep disorders, modafinil, after Cephalon's main patent had expired.
Today’s judgment by the Court of Justice ultimately upholds the Commission’s 2020 decision.

The European Commission is carrying out unannounced inspections at the premises of several companies active in the ski equipment sector.
The Commission has concerns that the inspected companies may have violated EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union).

The Commission takes note of the judgment of the General Court. In its judgment, the General Court dismissed Red Bull’s appeal against a 2023 Commission decision ordering an inspection at several of Red Bull’s premises.
The judgment confirms that the Commission decision was well founded, that it was adopted on the basis of sufficient indicia of anticompetitive behaviour, and that it was neither arbitrary nor disproportionate.
In addition, the judgment confirms that the manner in which inspections were carried had no bearing on the legality of the inspection decision.