"Competition weekly e-news" Newsletter Issues

Commission fines UBS, Barclays, RBS, HSBC and Credit Suisse € 344 million for participating in a Foreign Exchange spot trading cartel (02/12/2021)

The European Commission has completed its cartel investigation into the Foreign Exchange (‘Forex') spot trading market by imposing fines on five banks. The Commission has adopted today a decision imposing a total fine of € 261 million on the four banks that decided to settle the case, namely UBS, Barclays, RBS and HSBC. The Commission has also fined Credit Suisse € 83 million under the ordinary procedure.

Commission approves 2022-2027 regional aid map for Italy (02/12/2021)

The European Commission has approved under EU State aid rules Italy's map for granting regional aid from 1 January 2022 to 31 December 2027 within the framework of the revised Regional aid Guidelines.

Commission approves EUR 700 million French scheme to compensate for damage suffered by certain companies due to the coronavirus pandemic. (26/11/2021)

The European Commission has approved, under the EU State aid rules, a EUR 700 million French scheme to support certain companies particularly affected by the coronavirus pandemic and the restrictive measures put in place by the French government to limit the spread of the virus.

Targeted review of the General Block Exemption Regulation (State aid): revised rules for State aid promoting the green and digital transition (06/10/2021)

Based on the results of the evaluations conducted in the context of the Fitness Check of the State aid rules, the Commission started a revision of a number of Guidelines (Energy and Environmental Guidelines; Regional Aid Guidelines; Research, Development and Innovation Framework and Risk Finance Guidelines), where it appeared that changes are necessary, notably in light of new Commission priorities and the European Green Deal and Industrial and Digital Strategies. Given the complementarity between the GBER and these Guidelines, the Commission is, with the present targeted amendment, also revising the corresponding provisions of the GBER.
See also EC press release.

Commission adopts revised State aid rules on Important Projects of Common European Interest (25/11/2021)

The European Commission has adopted a revised Communication on State aid rules for Important Projects of Common European Interest (‘IPCEI Communication'). The revised IPCEI Communication will apply from 1 January 2022. It sets the criteria for the Commission to assess Member State support to cross-border IPCEIs that overcome market failures and enable breakthrough innovation in key sectors and technologies and infrastructure investments, with positive spill-over effects for the EU economy at large.

Commission approves 2022-2027 regional aid map for Lithuania (25/11/2021)

The European Commission has approved under EU State aid rules Lithuania's map for granting regional aid from 1 January 2022 to 31 December 2027, within the framework of the revised Regional aid Guidelines.

Commission approves €2.27 billion Greek aid scheme to support electricity production from renewable energy sources and high efficiency combined heat and power (24/11/2021)

The European Commission has approved, under EU State aid rules, a €2.27 billion Greek scheme for the production of electricity from renewable sources and high efficiency combined heat and power (CHP). The measure will help Greece reach its renewable energy targets, without unduly distorting competition, and will contribute to the new European objective of achieving climate neutrality by 2050.

Commission approves 2022-2027 regional aid map for Croatia (24/11/2021)

The European Commission has approved under EU State aid rules Croatia's map for granting regional aid from 1 January 2022 to 31 December 2027 within the framework of the revised Regional aid Guidelines.

Commission opens in-depth investigation into the proposed acquisition of Recticel by Greiner (24/11/2021)

The European Commission has opened an in-depth investigation to assess the proposed acquisition of Recticel by Greiner under the EU Merger Regulation. The Commission is concerned that the proposed acquisition may reduce competition in the supply of certain technical foam products.

Commission carries out unannounced inspections in the defence sector (23/11/2021)

On 23 November 2021, the European Commission is conducting unannounced inspections at the premises of a company active in the defence sector.

State aid rules in crisis and recovery (19/11/2021)

Speech by EVP Vestager at the 31st European Banking Congress,
Frankfurt,
19 November 2021.
[...]"The new rules will also help governments use State aid to get businesses back on a stable financial footing. They will help smaller businesses raise equity, to fill the gaps which the crisis has left in their balance sheets. [...]

Support study for the preparation of energy efficiency benchmarks in the context of the Revised ETS State Aid Guidelines (24/11/2021)

[...] "The objective of this work is to analyse quantitative data regarding the best available technologies implemented in the production process of the subsectors and sectors eligible under the ETS Guidelines, and 1) update existing benchmarks for products eligible under the previous Guidelines, and 2) develop new benchmarks for products not previously listed in the ETS Guidelines." [...]

Commission outlines contribution of competition policy and its review to green and digital transition, and to a resilient Single Market (18/11/2021)

The European Commission has adopted a Communication on a competition policy fit for new challenges, which frames the important role of competition policy for Europe's path towards recovery, the green and digital transitions, and for a resilient Single Market. The Communication highlights the in-built ability of competition policy to adapt to new market circumstances, policy priorities and customer needs: for example, today, the Commission has adopted the sixth amendment of the State aid Temporary Framework to enable Member States to provide targeted support to companies during the coronavirus crisis. Furthermore, the Commission is currently pursuing a review of competition policy tools to make sure all competition instruments (merger, antitrust and State aid control) remain fit for purpose, and complement its existing toolbox.

Commission invites comments on proposed revision of EU State aid rules for deployment of broadband networks (19/11/2021)

The European Commission has today launched a targeted public consultation inviting all interested parties to comment on a proposed revision of the Guidelines on State aid rules for broadband networks (the ‘Broadband Guidelines'). Interested parties can respond to the consultation until 11 February 2022.

Commission approves 2022-2027 regional aid map for Estonia (19/11/2021)

The European Commission has approved under EU State aid rules Estonia's map for granting regional aid from 1 January 2022 to 31 December 2027, within the framework of the revised Regional aid Guidelines.

Commission sets out future of Temporary Framework to support economic recovery in context of coronavirus outbreak (18/11/2021)

The European Commission has decided to prolong until 30 June 2022 the State aid Temporary Framework (currently set to expire by 31 December 2021). In order to further accelerate the recovery, the Commission has also decided to introduce two new measures to create direct incentives for forward-looking private investment and solvency support measures, for an additional limited period.

Commission fines Conserve Italia €20 million for participating in canned vegetables cartel (19/11/2021)

The European Commission has fined Conserve Italia Soc. coop. agricola and its subsidiary Conserves France S.A. (together ‘Conserve Italia') a total of € 20 000 000 for breaching EU antitrust rules.

Visma Enterprise (18/11/2021)

The Commission takes note of the preliminary ruling of the Court of Justice of the European Union clarifying that a clause in a distribution agreement, according to which the first distributor registering a transaction with the supplier enjoys priority in the sale process for a six-month period, does not constitute a restriction of competition by object under article 101(1) TFEU unless it reveals a sufficient degree of harm to competition.
In addition, the Court clarified that, irrespective of whether such a clause can be classified as a restriction of competition by object or by effect, such an agreement may be exempted pursuant to article 101(3) TFEU only if it satisfies all the cumulative conditions set forth in that provision.

Remarks on the Communication on a competition policy fit for new challenges (18/11/2021)

Remarks by EVP Vestager on the Communication on a competition policy fit for new challenges,
Brussels,
18 November 2021.
[...] "competition policy remains a tool that serves the needs of European citizens – as consumers who benefit from lower prices, wider choice and higher quality; as workers who benefit from a vibrant labour market; and as business owners who benefit from innovative, diverse and reliable inputs, and a level playing field." [...]

Industry concentration and competition policy (15/11/2021)

New issue of the Competition Policy Brief.
[...] "The result of strong enforcement will be a quicker, stronger and more sustainable recovery. As such, if anything, regulators should increase their vigilance because mergers, in particular, bring about structural and lasting changes in markets, with tangible effects even after the crisis is over. " [...]

Commission approves €4.5 billion Italian scheme to support companies and the economy in the context of the coronavirus outbreak (10/11/2021)

The European Commission has approved a €4.5 billion Italian scheme to support companies and the economy in the context of the coronavirus outbreak. The scheme was approved under the State aid Temporary Framework.

Autostrada Wielkopolska v Commission and Poland (11/11/2021)

In Case C-933/19 P, the Court of Justice dismissed Autostrada Wielkopolska SA’s appeal against the judgment of the General Court (T-778/17), in which company’s action against the Commission’s Decision ordering Autostrada to repay the aid received back to the Polish State had been dismissed. In its judgment, the Court held that the Commission did not infringe any essential procedural requirement, that the General Court did not misapply the private investor test, and that General Court applied the rules of evidence correctly.

Stichting Cartel Compensation and Equilib Netherlands (11/11/2021)

The Commission takes note of today’s preliminary ruling of the Court of Justice of the European Union. In its ruling, the Court confirmed that a national court has the power to find an infringement of Article 101 TFEU and therefore, subsequently, to award antitrust damages also for the period when the Commission did not have at its disposal effective powers for the enforcement of EU competition law in the air transport sector.
We will carefully study the judgment.

Solar Electric and Others v Commission (10/11/2021)

The Commission takes note of the judgment of the General Court. In its judgment, the General Court dismissed Solar Electric Holding’s appeal against a 2020 Commission’s decision to reject the company’s complaint.
In its judgment, the General Court confirmed that formal complaints should by definition aim at raising doubts as regards the compatibility of State aid measures with the internal market. In addition, the General Court confirmed that only Member States have the right and the obligation to notify State aid measures to the Commission. Therefore, the Commission is not obliged to examine the substance of a complaint whereby an applicant seeks to demonstrate the compatibility of State aid measures.
The Commission shall however examine any information brought to its attention as “general market information” without any obligation to start an investigation ex officio.

Google and Alphabet v Commission (Google Shopping) (10/11/2021)

Today, the General Court confirmed the Commission's June 2017 decision that Google abused its market dominance in general search by treating its own comparison shopping service more favourably than competing comparison shopping services. Google was displaying its own service prominently at or near the top of the first search results page, irrespective of how good or relevant it was, while rival services were demoted to page four or lower, where they were not even seen. Today's judgment delivers the clear message that Google's conduct was unlawful and it provides the necessary legal clarity for the market. Comparison shopping delivers an important service to consumers, at a time when e-commerce has become more and more important for retailers and consumers. As digital services have become omnipresent in our society nowadays, consumers should be able to rely on them in order to make informed and unbiased choices. The Commission will continue to use all tools at its disposal to address the role of big digital platforms on which businesses and users depend to, respectively, access end users and access digital services. Antitrust enforcement goes hand in hand with the EU's legislative action to address specific issues going beyond competition law. In this respect, the Commission's proposal for a Regulation on Digital Markets Act to ensure fairness and contestability is currently discussed by the European Parliament and the Council.
See also Curia's press release.

What is competition for? (04/11/2021)

Executive Vice-President Vestager’s speech,
2021 Competition Day at the Danish Competition and Consumer Authority,
4 November 2021.
[...] "None of this means that competition policy has become a sort of shadow version of our green and digital policies. Our first duty, after all, is still to competition – and to the businesses and consumers who rely on us, to make sure that markets work fairly and well. The Treaty gives us that task – and if we don’t take care of it, then no one else will.
But like everyone else, in this time of great change, we need to do our job with an eye on the future. And if there are ways that we can help Europe go faster and further on its journey, to a green and digital economy – well, then that’s what we should do. " [...]

Commission adopts interim measures to prevent harm to competition following Illumina's early acquisition of GRAIL (29/10/2021)

The European Commission has adopted interim measures to restore and maintain the conditions of effective competition following Illumina's early acquisition of GRAIL, which is in breach of the standstill obligation under the EU Merger Regulation.

Commission approves €173 million aid scheme for charging and refuelling stations for zero and low emission vehicles in Poland (29/10/2021)

The European Commission has found Polish plans to invest into electric charging and hydrogen-refuelling infrastructure for zero and low emission vehicles to be in line with EU State aid rules. The measure will contribute to reducing CO₂ and other pollutant emissions without unduly distorting competition in the Single Market, in line with the Commission's Green Deal objectives.

Commission opens in-depth investigation into proposed acquisition of Arm by NVIDIA (27/10/2021)

The European Commission has opened an in-depth investigation to assess the proposed acquisition of Arm by NVIDIA under the EU Merger Regulation. The Commission is concerned that the merged entity would have the ability and incentive to restrict access by NVIDIA's rivals to Arm's technology and that the proposed transaction could lead to higher prices, less choice and reduced innovation in the semiconductor industry.

Commission carries out unannounced inspections in the animal health sector in Belgium (25/10/2021)

The European Commission is conducting unannounced inspections at the premises of a pharmaceutical company active in animal health in Belgium.

Eco Fox (28/10/2021)

In joined cases Eco Fox, Alpha Trading & Novaol (C-915/19, C-916/19 & C-917/19), the Court of Justice issued a preliminary ruling concerning the modification of a fiscal aid scheme for biodiesel which had been authorised by the European Commission. The Court concluded that the modification of the criteria for allocating the biodiesel quotas must not be regarded as new aid, as it did not affect the fundamental elements of the approved scheme, as assessed by the Commission in its evaluation of the compatibility of the previous versions of that scheme with the internal market.

A Competition Policy Fit for New Challenges (29/10/2021)

Executive Vice-President Vestager’s speech,
2021 Competition Law conference organised by the Association of Finnish Lawyers,
29 October 2021.
[...] "Our current review of our competition rules is unprecedented in its scope and ambition. [...] By simultaneously reviewing all our competition instruments, we can make sure they are fit for purpose. " [...]

Rail transport – revision of State aid guidelines (Roadmap) (01/10/2021)

A recent fitness check (evaluation) of the State aid rules for the rail sector confirmed that they are outdated and need a full review.

Greener land transport – simplified state aid rules (New Land Transport Enabling Regulation) (Roadmap) (01/10/2021)

This initiative enables the Commission to adopt a new block exemption regulation for land transport, and so promote and support less polluting forms of transport. This will help meet the EU’s climate targets.

A new era of cartel enforcement (22/10/2021)

Executive Vice-President Vestager’s speech,
Italian Antitrust Association Annual Conference,
22 October 2021.
[...] "We all know our economy is facing huge challenges – not just the need to recover from the deep crisis which the coronavirus has caused, but also to rebuild in a way that’s consistent with our green and digital future. [...]
That’s why we’re investing so much at the moment, to make sure our work stays relevant. It’s why we’re developing new ways to spot cartels, and why we take an interest in new types of cartel, as well as more familiar ones." [...]

A new Europe: Competition, Industrial Policy, Taxation (21/10/2021)

Executive Vice-President Vestager’s speech,
Fondazione per la collaborazione tra i popoli - Romano Prodi,
21 October 2021.
[...] "Competition enforcement protects against market power, against dependency on monopolies or too few alternatives. This creates an environment where firms need to be at their best to grow and succeed.
Another aspect of competition policy is how it fosters social cohesion." [...]

Commission approves acquisition of IHS Markit by S&P Global, subject to conditions (22/10/2021)

The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of IHS Markit by S&P Global. The approval is conditional on the divestment of businesses in the areas of commodity price assessments and financial data.

Polskie Linie Lotnicze "LOT" SA v European Commission (20/10/2021)

The Commission takes note of today’s judgments of the General Court which upheld two 2017 Commission's decisions approving, under the EU Merger Regulation, the acquisition of certain Air Berlin assets by EasyJet and Lufthansa respectively.
In its judgments, the General Court upheld the Commission’s assessment in both decisions. Notably, it confirmed that the route-by-route assessment traditionally carried out by the Commission in mergers involving airlines was not warranted in the two Air Berlin cases, considering that Air Berlin had completely and definitely ceased its operations at the time of the mergers.
Furthermore, the General Court found that the analytical framework applied by the Commission under the airport-by-airport approach was sufficiently and adequately explained.
See also:

• Judgment in Case T-296/18
• Curia's press release

Commission carries out unannounced inspections in the wood pulp sector (12/10/2021)

On 12 October 2021, the European Commission is conducting unannounced inspections in locations in several Member States at the premises of companies active in the wood pulp sector.

Commission approves €700 million French scheme for certain retailers and services affected by the coronavirus pandemic (15/10/2021)

The European Commission has approved, under the EU state aid rules, a €700 million French scheme to support certain retailers and services affected by the coronavirus pandemic and restrictive measures taken by the French government to limit the spread of the virus.

Commission approves €31.9 billion Italian scheme to support companies affected by the coronavirus outbreak (15/10/2021)

The European Commission has approved a €31.9 billion Italian scheme to support companies affected by the coronavirus outbreak. The scheme was approved under the State aid Temporary Framework.

Commission invites comments on draft proposal to further facilitate implementation of aid measures promoting the green and digital transition (06/10/2021)

The European Commission is inviting Member States and all other interested parties to comment on certain proposed amendments to the General Block Exemption Regulation (GBER). The purpose of the proposed revision is to reflect the changes to various sets of State aid Guidelines, which are currently being reviewed and to further facilitate public support for the EU's green and digital transition. The new rules will help set the right foundations for a sustainable economy in a time of recovery from the effects of the coronavirus pandemic. Member States and other interested parties can respond to the consultation until 8 December 2021.

Sumal (06/10/2021)

The Commission takes note of the preliminary ruling of the Court of Justice of the European Union clarifying that liability of parent companies for infringements of EU competition law can extend - under certain conditions - to their subsidiaries, even if those subsidiaries were not addressees of the infringement decision itself.
In particular, the Court clarified that, in the context of a follow-on action for damages, a fully owned subsidiary can be held liable for an infringement of EU competition law of its parent company on the condition that the claimant proves that the subsidiary and the parent company form a single economic unit and the subsidiary is entitled to contest before the national court that it forms a single economic unit with the parent company. In a situation where the Commission has not adopted a decision finding that the conduct by the parent company amounts to an infringement of EU competition law, the subsidiary of an alleged infringer should also be entitled to contest before the national Court the very existence of the alleged infringement.
See also Curia's press release.

Spanish goodwill (08/10/2021)

The Commission takes note of the judgment of the Court of Justice of the European Union upholding the 2018 judgment of the General Court and thus the 2009 and 2011 Commission State aid decisions in this case. In its decisions, the Commission had found that a Spanish measure allowing tax amortization of financial goodwill for foreign shareholding acquisitions had the effect of favouring in a selective manner the foreign expansion of Spanish-resident companies vis-à-vis other companies. On this basis, the Commission had concluded that the measure amounted to illegal and incompatible State aid and had ordered Spain to recover the incompatible aid.
In its judgment, the Court of Justice confirmed that corporate tax provisions can still be selective and hence amount to State aid, even if they may a priori benefit all undertakings subject to corporate tax, if they differentiate between companies in the same legal and factual situation.
Furthermore, in its judgment, the Court of Justice stressed again the importance of the determination of the reference framework and confirmed the Commission carried out the correct analysis in this case.
See also Curia's press release.

Scandlines Danmark and Scandlines Deutschland v Commission (06/10/2021)

The Commission takes note of the judgment of the Court of Justice of the European Union upholding the 2018 judgment of the General Court in this case. In particular, the Court confirmed the Commission’s finding in its 2015 State aid decision that public investments in "hinterland" rail connections which are not open to competition are not subject to State aid rules, since they are not liable to distort competition or affect trade between Member States.

Covestro Deutschland v Commission (06/10/2021)

The Commission takes note of the judgments of the General Court upholding a 2018 Commission State aid decision, in which the Commission found that certain exemptions from network charges for baseload consumers in Germany amounted to illegal and incompatible State aid.
In its judgment, the Court confirmed the Commission’s finding that the scheme involved the use of State resources and thus constituted State aid, which the Commission had found to be incompatible with the internal market.

Tempus Energy Germany and T Energy Sweden v Commission (06/10/2021)

In case T-167/19, the General Court dismissed the action brought by Tempus Energy Germany and T Energy Sweden, seeking the annulment of European Commission's Decision of 7 February 2018 not to raise objections to the aid scheme for the capacity market mechanism in Poland. Besides the annulment of the Decision, the applicants also requested the Commission to be ordered to produce a series of documents related to the contested Decision.

Commission seeks feedback on commitments offered by T-Mobile CZ, CETIN, and O2 CZ concerning the Czech telecommunications market (01/10/2021)

The European Commission invites comments on commitments offered by T-Mobile CZ, CETIN, O2 CZ, and their respective parent companies, Deutsche Telekom and PPF, to address competition concerns in relation to the network sharing agreements (‘NSAs') between T-Mobile CZ, O2 CZ, and then Czech telecom infrastructure provider CETIN, as well as the Mobile Network Services Agreement (‘MNSA') between O2 CZ and CETIN.

Commission clears Italian public support for Laziomar ferry service; closes investigation concerning support to Saremar (30/09/2021)

The European Commission has concluded that the public service compensation granted since 2011 to Laziomar S.p.A. (‘Laziomar') for the operation of ferry services in Italy is in line with EU State aid rules. The same applies to the compensation granted to Laziomar after it has been acquired by Compagnia Laziale di Navigazione S.r.l. (‘CLN'). The Commission also closed its in-depth investigation into certain measures in favour of Sardegna Regionale Maritima S.p.A. (‘Saremar'), which has been in liquidation since 2016.

Commission Statement on consulting Member States on proposal on the future of the State aid Temporary Framework (30/09/2021)

The European Commission has sent to Member States for consultation a draft proposal to prolong until 30 June 2022 the State aid Temporary Framework, while setting out the path for the progressive phase-out of crisis support in light of the ongoing recovery of the European economy. In this context, to further accelerate the recovery, the proposal also adjusts the scope of the Temporary Framework by enabling forward-looking investment and solvency support measures for a limited duration.

Commission approves 2022-2027 regional aid map for Poland (28/09/2021)

The European Commission has approved under EU State aid rules Poland's map for granting regional aid from 1 January 2022 to 31 December 2027, within the framework of the revised Regional aid Guidelines (“RAG”).

NEC (and others) v Commission (29/09/2021)

The Commission takes note of the judgments of the General Court dismissing all five actions for annulment against a 2018 Commission decision imposing a total fine of €254 million on nine producers of capacitors for participating in a cartel.
In its judgments, the General Court fully upheld the Commission’s assessment and decision.
See also Curia's press release.

Ryanair and Others v Commission (29/09/2021)

The Commission takes note of the judgments of the General Court which dismissed the appeals of Ryanair and TUIfly against the 2016 Commission State aid decision in this case. In its decision, the Commission had found certain support measures granted by Austria to Ryanair and TUIfly to be incompatible with the internal market and had ordered recovery of the aid.
In its judgments, the General Court fully upheld the Commission’s assessment and confirmed that there was no violation of the applicants’ procedural rights.

Horizontal agreements between companies – revision of EU competition rules (13/07/2021)

This initiative will revise:

• the rules exempting R&D and specialisation agreements from aspects of EU competition law
• the guidelines accompanying these rules.

Information request: Availability of short-term export-credit insurance for exports to all countries in the Annex of the Short-term export-credit insurance Communication (20/09/2021)

The Commission is now inquiring whether the current market situation might justify a prolongation of the removal of all countries from the list of marketable risk countries in the Annex of the Communication. In order to establish whether there is currently sufficient private capacity for the insurance of exports to those countries, the Commission invites Member States, credit insurers and other interested parties to submit information.

EVP Margrethe Vestager's speech at Fordham International Antitrust Law and Policy Conference (01/10/2021)

EVP Margrethe Vestager's speech,
Fordham International Antitrust Law and Policy Conference, New York,
1 October 2021
[...]"We don’t have the benefit of a single, global competition law, or a single antitrust authority, to protect competition the same way across the world. But by working together ever more closely, decade after decade, we’ve been able to build the trust and understanding that allows us to match the growth of global business with a coordinated approach to enforcing the rules." [...]