Thursday, December 9, 2021
The Netherlands
A. Dutch Competition Authority (ACM) selections, insurance policies, and market research.
1. ACM continues motion in opposition to deceptive sustainability claims within the clothes sector.
Because some clothes corporations market themselves as sustainable however exaggerate and can’t substantiate their claims, in early 2021 ACM printed 5 guidelines for sincere sustainability claims after which launched investigations and requested over 70 corporations within the clothes sector to critically look at their claims. The ACM itself appeared into the sustainability claims of 10 main clothes corporations for accuracy, readability, and verifiability, and requested info from two Dutch and 4 non-Dutch clothes corporations to evaluate seemingly deceptive claims.
On Nov. 4, 2021, ACM introduced the outcomes of its investigations and can ask regulators within the non-Dutch firm nations to take motion in opposition to these corporations. ACM can take motion in opposition to the 2 Netherlands-based corporations and may impose fines or orders topic to periodic penalty funds on corporations that misled shoppers in regards to the sustainability features of their merchandise.
2. ACM penalizes vitality firm Enstroga for persevering with to terminate vitality provide to prospects with fixed-rate vitality contracts.
On Nov. 2, 20211, ACM introduced a penalty in opposition to vitality firm Enstroga for persevering with to terminate vitality provide to prospects that didn’t agree with modifications to their fixed-rate vitality contracts. Initially, ACM ordered Enstroga to adjust to the regulation and imposed incremental penalty funds. Nevertheless, the vitality firm continued to terminate contracts as a result of it was scuffling with excessive vitality costs. Given Enstroga’s ongoing noncompliance, ACM penalized the corporate EUR15,000.
3. New European guidelines to guard shoppers in opposition to pretend low cost gives.
Because shoppers generally have no idea whether or not a “particular deal” is actual – i.e., whether or not the “gross sales” value or limited-time provide value is a legit low cost – Dutch regulation prohibits sellers from deceptive shoppers with pretend reductions. Products will need to have been bought on the introduced “was” value for 3 months previous to the particular provide. (The “was” value is also known as the reference value in opposition to which the “now” value is in contrast.)
On Nov. 24, 2021, the ACM introduced the results of its investigation into “particular gives” utilizing “was” and “now” costs, concluding that net outlets usually made non-genuine gives. New European guidelines will come into impact mid-2022 to higher shield shoppers in opposition to pretend gives. To forestall companies from charging a excessive value for a brief interval earlier than the particular value provide – thereby overstating the worth benefit for shoppers – the “was” value should be the bottom value the dealer has charged for 30 days previous to the particular provide.
4. EU Court of Justice ruling on independence of German vitality regulator has penalties for ACM’s energy-related duties.
In September 2021, the very best European courtroom dominated on the independence of the German vitality regulator, discovering that the creation of sure energy-related guidelines fall below the purview not of a nationwide legislature however of the member state’s impartial nationwide regulator. Therefore, this ruling impacts the ACM’s energy-related obligations.
On Nov. 29, 2021, the ACM mentioned the significance of impartial regulators and the ruling’s penalties for Dutch laws and ACM’s decision-making processes. Setting transmission and distribution tariffs and setting guidelines for system connection and entry to the nationwide grids are inside ACM’s purview. ACM will decide what these different penalties might be over the subsequent few months.
United Kingdom
A. Previews for 2022
1. Reform of the UK system?
On July 20, 2021, the UK authorities printed a session paper setting out proposals for wide-ranging reform to the UK’s competitors and client safety coverage. The session ended Oct. 1, and on Oct. 4 the UK Competition and Markets Authority (CMA) printed its response to the session. Reform proposals supported by CMA embrace:
Merger management: Due to considerations about massive companies buying startups or potential new entrants, CMA proposes an extra threshold that provides it jurisdiction over a merger involving a minimum of one occasion with provide share of a minimum of 25% of a selected class of products and companies and a UK turnover of greater than £100 million. The present turnover threshold applies to the goal enterprise solely and will improve to £100 million.
Antitrust enforcement: To additional incentivize companies to use for immunity, CMA proposes extending full immunity from legal responsibility for damages to these undertakings at present granted immunity in cartel investigations.
In parallel, to guard competitors in digital markets from a focus of energy in a small variety of massive digital corporations, the UK authorities proposed a new, pro-competition regime for digital markets. On Sept. 29, 2021, CMA printed a transient, supportive response to the digital proposals. As the federal government remains to be contemplating responses to its session, it might be a while earlier than additional steps are taken in direction of laws.
2. Implementation of CMA’s Annual plan.
On Dec. 2, 2021, CMA printed a session draft of its 2022/2023 annual plan, which units out the 5 primary themes on which CMA will focus when the plan is carried out in April 2022.
Protecting shoppers from unfair habits by companies, throughout and past the COVID-19 pandemic: CMA’s future focus will embrace implementing client safety guidelines in markets the place shoppers seem to endure detriment – examples listed embrace leasehold housing, deceptive inexperienced claims, pretend and deceptive on-line evaluations, social media endorsements, youngsters’s social care provision, and IVF. CMA will even proceed to implement the UK competitors guidelines in opposition to companies that value at artificially excessive ranges via resale value upkeep and extreme and unfair pricing.
Fostering competitors to advertise innovation, productiveness, and long-term progress throughout the UK: CMA intends to make use of present instruments to advertise competitors and shield shoppers, given the continuing affect of the pandemic. CMA just lately has imposed important penalties on companies that failed to offer info to CMA, or to adjust to orders to carry an acquired enterprise separate pending the end result of CMA’s merger investigation.
Promoting efficient competitors in digital markets: CMA will proceed its work with the UK authorities on proposals for laws that may introduce a pro-competition regime for digital markets. Timing is unclear, however when in power this new regime will present for intervention to open digital markets to better competitors and require companies designated by CMA’s Digital Markets Unit as having strategic market standing (SMS) to inform CMA of their mergers below a particular merger management regime that requires them to droop completion till CMA approval has been granted.
Supporting the transition to low carbon progress, together with via growth of wholesome aggressive markets in sustainable services and products: CMA is anticipated to offer recommendation on this topic to the UK authorities in early 2022. In the meantime, CMA will proceed to fight practices which will impede the transition to a low carbon economic system, together with measures to scale back the foreclosures impact of unique agreements within the electrical automobile charging market.
Delivering CMA’s new obligations and strengthening its place as a worldwide competitors and client safety authority: Brexit has expanded the vary of points inside CMA’s remit. Many merger, cartels, and abuse of dominance circumstances with an EU dimension that included the UK would beforehand have been the unique purview of the EU. Now, CMA alone can take motion over the UK features, investigating in parallel with regulators in different jurisdictions. Due to Brexit, the EU Single Market guidelines now not apply to the UK; nevertheless, items and companies should have the ability to transfer freely throughout the 4 UK nations, and monitoring obstacles to the efficient operation of the UK inside market is now CMA’s duty, via its Office for the Internal Market.
3. Greater worldwide cooperation following the November 2021 G7 summit.
The heads of the competitors authorities of the G7 (Canada, France, Germany, Italy, Japan, UK, USA, along with the EU and visitor nations Australia, India, South Africa, and South Korea) held their first-ever two-day digital summit on the finish of November 2021, hosted by CMA at its London headquarters. The purpose of the summit was to extend collaboration on competitors points in digital markets and talk about coverage priorities and competitors regulation points arising from various digital market options, similar to app shops, on-line marketplaces, digital promoting, cellular ecosystems, cloud computing, and algorithms. At the identical time, the attendees collectively printed a compendium outlining their approaches to addressing competitors points in digital markets and highlighting shared approaches and ways. The compendium supplies a helpful overview of key points for the G7, the steps being taken to strengthen competitors authorities’ capability and data base to allow them higher to deal with these points, areas for reform of their enforcement instruments, and the significance of cooperation amongst regulators, each nationally and internationally.
Poland
A. First international direct funding resolution issued in second part proceedings.
Due to the COVID-19 pandemic, in 2020 Poland carried out a brief international direct funding management regime (FDI). The regime grants the president of the Polish Office of Competition and Consumer Protection (“UOKiK”) powers to look at transactions regarding the acquisition of Polish undertakings with turnover exceeding EUR 10 million in any market the place the enterprise is:
lively in notably important sectors of trade together with IT, telecommunication, vitality, fuels, pharma and medical gadgets, meals processing, and arms and ammunition; and
which have a minimum of one share admitted to buying and selling on a regulated market or launched to buying and selling in another buying and selling system in Poland; or
which possess property disclosed within the official checklist of amenities, installations, gadgets, and companies included in essential infrastructure.
The obligation to report transactions to UOKiK applies to acquirers with their registered workplace or citizenship (for pure individuals) exterior a member nation of the EU, European Economic Area, and Organisation for Economic Co-operation and Development. Clearance below the FDI regime doesn’t exempt acquirers from the duty to acquire separate antitrust merger clearance if related situations to inform the transaction are met.
The funding management process consists of two phases. The first part is the preliminary investigation, serving to look at easy circumstances that require no additional investigation. Most circumstances finish at this stage. However, circumstances which will pose a severe menace to public order, public security, or public well being could also be referred for extra detailed management proceedings (part two).
The acquisition of Odlewnia Zawiercie by Meide Group was the primary case that required a second part investigation. During the proceedings, UOKiK requested numerous Polish ministers for his or her opinions on the transaction, together with the minister of protection and the minister of inside affairs and administration. The proceedings lasted roughly 5 months. Ultimately, the transaction was cleared, because the investigation confirmed no menace to public security and order. The UOKIK president famous that manufacture and sale of weapons-related merchandise represents an insignificant half Odlewnia Zawiercie’s enterprise actions.
B. UOKiK president investigates deceptive practices in influencer advertising.
The UOKiK president initiated an investigation into influencer exercise geared toward deceptive shoppers, generally often called scams. Scams embrace, amongst different issues, informing shoppers about non-existent promotions, concealing necessary options of a product, exaggerating the properties or function of the marketed product, or providing merchandise dangerous or harmful to well being. According to the UOKiK president, recipients of social media content material are principally younger individuals who, regardless of their familiarity with new applied sciences, can not essentially distinguish between impartial info and promoting.
In accordance with Polish regulation provisions, business content material on influencer profiles on numerous social media websites must be labelled as promoting. However, many of the business content material on social media shouldn’t be marked in any respect or is labelled insufficiently. For occasion, influencers use solely the hashtag #advert or #sponsoredby, which might not be understandable to Polish web customers. Also, influencers typically aren’t conscious of their duty and authorized obligations, as a few of them didn’t even reply to the UOKiK president’s request for info.
Italy
A. ICA opens investigation into Wind Tre S.p.A. for abuse of financial dependence in opposition to its resellers.
On Nov. 4, 2021, the Italian Competition Authority (ICA) launched an investigation into the telecommunication firm Wind Tre S.p.A. relating to a doable abuse of financial dependence referring to Wind’s imposition of economically unsustainable phrases and situations on its resellers. The process was initiated following a reseller criticism.
First, the contracts at challenge offered for an exclusivity obligation in favor of Wind by advantage of a noncompete clause in addition to a number of tying obligations relating to furnishings and business supplies for use by resellers. Moreover, Wind allegedly imposed worth added tax (VAT) prices upon the resellers via a reverse cost mechanism, below which the complete credit score, together with the VAT paid by the top client, was transferred to Wind, and the reseller needed to pay the VAT on every transaction, deducting the quantity from the commissions accrued.
Furthermore, in response to the ICA, Wind required a number of unilateral modifications to the resellers’ compensation plan and, ultimately, it withdrew from the contracts with a number of the resellers with out justification or penalty. On the opposite hand, any withdrawal on the a part of the reseller would have entailed the compensation of commissions already obtained in relation to installments not but paid by prospects.
Wind now has 60 days to be heard by the ICA, with the process on account of terminate earlier than Dec. 31, 2022.
B. Italian authorities approves draft Law on Market and Competition of 2021: primary provisions.
On Nov. 4, 2021, the Italian Council of Ministers accepted the draft Law on Market and Competition of 2021. The draft regulation, which is a part of the National Recovery and Resilience Plan, now could be being reviewed by the Italian Parliament, which should give ultimate approval.
The textual content incorporates lots of the legislative proposals made by the ICA in March 2021, and it goals to, amongst different issues, align the latter’s motion to that of the European Commission just about anti-competitive agreements and merger management. As for the agreements, the federal government has agreed to introduce the settlement process in nationwide antitrust proceedings. Regarding merger management, the federal government intends to adapt the check for the substantial evaluation of mergers set out within the EU Merger Regulation and utilized by the European Commission, i.e., the numerous obstacle of efficient competitors (SIEC) check. Moreover, the system for calculating the turnover of credit score and monetary establishments might be aligned with the EU Merger Regulation, and the excellence between concentrative and cooperative joint ventures might be eliminated.
In addition, the federal government has adopted a number of of the ICA’s ideas relating to strengthening the merger management system. First, the ICA could be given the facility to request notification of sure transactions that don’t exceed the turnover thresholds set forth in Law no. 287/90. Moreover, the federal government proposes to amend Article 9, of Law no. 192/1998 by establishing a presumption of financial dependence upon operators who’ve a business relationship with suppliers of intermediation companies by way of digital platforms which “play a decisive position in reaching finish customers and/or suppliers, additionally by way of community results and/or knowledge availability.” The invoice then signifies a collection of conduct which will represent an abuse of financial dependence.
European Union
A. AG Rantos clarifies temporal scope of the Damages Directive.
A Spanish National Court—in an motion for damages introduced by an alleged sufferer of the “truck cartel”—referred to the EU Court of Justice (CJEU) a query on the temporal scope of sure provisions of Directive 2014/104/EU on actions for damages below nationwide regulation for competitors regulation infringements (“Damages Directive”). Specifically, the query involved the scope ratione temporis of the provisions relating to the limitation interval and the evaluation of hurt.
In its Oct. 28, 2021 opinion, Advocate General Athanasios Rantos first burdened that the Damages Directive distinguishes between substantive provisions, which don’t apply retroactively to “conditions present” earlier than its efficient date, and procedural provisions that may be utilized retroactively. According to the AG, the supply relating to the five-year limitation interval doesn’t apply to an motion that considerations info that occurred earlier than the latter entered into power. Likewise, the supply setting out a presumption of hurt brought on by cartels has a substantive nature. Hence, it’s not relevant to actions associated to infringements that occurred earlier than the efficient date of nationwide “transposing legal guidelines”— i.e., the State measures to implement the Damages Directive.
By distinction, nationwide transposing measures regarding the courts’ energy to evaluate the hurt brought on by the infringement have a procedural nature. Therefore, they will apply to actions associated to infringements that ceased earlier than the efficient date of the nationwide transposing laws.
B. European Court of Justice (ECJ) solutions preliminary questions relating to article 101 TFEU.
On Nov. 18, 2021, the ECJ answered preliminary questions on standards that must be assessed when analyzing compliance of shopper reservation techniques between distributors. In December 2013, the Latvian Competition Authority (LCA) fined SIA Visma Enterprise for a clause in its accounting software program distribution agreements that, in response to the LCA, restricted competitors between its distributors.
The ECJ dominated (hyperlink in Dutch) that Art. 101 (1) TFEU should be interpreted to imply {that a} prohibition “by object” solely exists when there’s a sufficiently considerable stage of distortion (i.e., the related agreements are supposed to forestall, limit, or distort competitors). Furthermore, the ECJ acknowledged that Art. 101 (3) TFEU could also be justified if the agreements fulfill the 4 cumulative situations set forth in paragraph 3. This requires that the advantages of the restriction outweigh any anticompetitive results.
C. EU Commission imposes EUR 20 million effective for taking part in cartel of canned vegetable retailers.
The European Commission fined Conserve Italia EUR 20 million for breach of EU antitrust guidelines, discovering that Conserve Italia and different market individuals engaged in a cartel for the availability of sure sorts of canned greens to retailers within the EEA for greater than 13 years. They fastened costs, agreed on market shares and quantity quotas, allotted prospects and markets, exchanged commercially delicate info, and coordinated their replies to tenders. Three different individuals within the cartel settled with the European Commission in 2019, however Conserve Italia didn’t settle at the moment. According to the European Commission, the extent of the effective displays the gravity of their anti-competitive habits and the significance of competitors regulation.
D. According to the European Court of Justice, civil courts can also award damages for cartel harm in the course of the transitional regime interval.
In 2017, the European Commission fined 19 airways for value coordination in respect of air cargo companies. The price-fixing associated to gas surcharges, safety surcharges, and the fee of commissions thereon. Subsequently, to assert damages an motion was introduced earlier than the referring courtroom within the Netherlands on behalf of purchasers of air freight companies. The airways had argued that, due to the transitional regime of Articles 104 and 105 TFEU, it was not for the nationwide courts to implement European competitors guidelines.
On Nov. 11, 2021, the ECJ dominated (hyperlink in Dutch) that an aggrieved occasion can invoke European competitors guidelines to acquire damages and, as well as, that the cartel ban of Article 101 TFEU additionally might be invoked for the interval when Articles 104 and 105 TFEU had been nonetheless relevant. According to the ECJ, Regulation 1/2003 doesn’t include a provision on the retroactive approval of agreements or practices previous to its efficient date. Therefore, Article 101 TFEU can also be to be utilized earlier than Regulation 1/2003 grew to become efficient, and the ECJ discovered no limitation on the referring courtroom’s potential to determine the existence of infringement of the competitors guidelines and to order compensation for the resultant loss.
Pamela J. Marple, Yuji Ogiwara, Stephen M. Pepper, Gillian Sproul, Hans Urlus, Dawn (Dan) Zhang, Mari Arakawa, Anna Bryńska, Filip Drgas, John Gao, Marta Kownacka, Pietro Missanelli, Massimiliano Pizzonia, Anna Rajchert, Jose Abel Rivera-Pedroza, Chazz Sutherland, Ippei Suzuki, Rebecca Tracy Rotem and Alan W. Hersh contributed to this text.
©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 343
https://www.natlawreview.com/article/netherlands-uk-poland-italy-eu-competition-currents
