Newsbulletin April 2023 - CERHA HEMPEL Rechtsanwälte GmbH

Authority		Date	Title	Abstract	Type of publication
1. AFCA (BWB)
	1.1	27.04.2023	Update on sector inquiry into food industry: AFCA now surveying online food retailers	“The Austrian Federal Competition Authority (AFCA) launched its inquiry into the food sector last October (press release of 25 October 2023). On 15 March 2023 it sent an online survey to 1,500 suppliers of Austria’s four largest food retailers (press release of 15 March 2023). Requests for information on business data have already been issued to food retailers. The AFCA is now launching another survey in connection with this food sector inquiry. On 27 April 2023 it mailed requests for information to 13 online food retailers. Some requests for information were sent to companies that are only engaged in online activities, and some to other businesses that operate both online and through physical stores."[See more]	Press release
	1.2	24.04.2023	Bid rigging: AFCA and provincial courts of audit exchange experience	"Where public or private clients put out contracts for tender, bidders will sometimes collude to rig their bids, with a negative outcome for the clients. The member countries of the Organisation for Economic Co-operation and Development (OECD) spend an average of 12% of their gross domestic product on public procurement. If collusive tendering could be avoided, public procurement costs would be reduced by one fifth, according to the OECD." [See more]	Press release
	1.3	21.04.2023	AFCA confirms dawn raid in the distribution of refrigeration and freezing equipment	"The Austrian Federal Competition Authority (AFCA) is carrying out a dawn raid in the distribution of refrigeration and freezing equipment. The undertaking is suspected of anti-competitive practices specifically the binding of resale prices (so-called vertical price fixing) in the distribution of refrigeration and freezing equipment. The operation began on April 18, 2023 and has been completed on May 11, 2023." [See more]	Press release
	1.4	19.04.2023	Cartel Court fines ADOMO Beteiligungs GmbH for illegal merger in two cases at AFCA´s request	"On 22 March 2023, the Cartel Court imposed fines of EUR 65,000 and EUR 85,000 (25 Kt 12/22 k and 24 Kt 9/22 m) on ADOMO Beteiligungs GmbH following a request submitted by the Austrian Federal Competition Authority (AFCA) due to ADOMO’s illegal acquisition of more than 50% of the shares and thus sole control of Universal Gebäudereinigung Gesellschaft m.b.H. as well as the acquisition of 100% of the shares in DUO Holding GmbH, both of which would have been subject to notification obligations. The acquisitions were carried out on 15 June 2020 and 11 November 2020 respectively." [See more]	Press release
	1.5	05.04.2023	Interchange fees: AFCA given monitoring and investigation powers	"The Austrian National Council unanimously adopted the Interchange Fee Implementation Act (IEVG), which is based on Regulation (EU) 2015/751 on interchange fees for card-based payment transactions, thereby giving the Austrian Federal Competition Authority (AFCA) the power to monitor interchange fees. Specifically, the AFCA has been granted investigation powers and the right to impose administrative penalties. It may send requests for information, demand any information on site that it requires to conduct investigations, and question witnesses." [See more]	Press release
	1.6	05.04.2023	AFCA advocates the Joint Statement by the European Competition Network (ECN) on the European Commission´s review of the Market Definition Notice	"With the present statement the ECN welcomes the initiative to review the Commission’s Market Definition Notice used in EU competition law (OJ C 372, 9.12.1997, p. 5 – 13, ‘the Notice’). The ECN has been actively participating in the process led by the European Commission. The draft revised text of the Notice published for public consultation on 8 November 2022 (‘Draft Revised Notice’) provides helpful updates to make the Notice fit for purpose in a digital and globalised economy." [See more]
2. GFCO
	2.1	27.04.2023	Get H2 hydrogen cooperation given the green light	"Andreas Mundt, President of the Bundeskartellamt: “There are currently a number of cooperation projects in the growing hydrogen market. Switching existing gas pipelines which are no longer required to hydrogen, as is done in the case of the Get H2 project, certainly plays a big role in this context. When competitors cooperate, the guiding principles of competition law have to be observed. A cooperation project may only restrict competition to the extent and for the period required for a speedy set up of the hydrogen infrastructure. Competition requirements include in particular non-discriminatory network access for producers and distributors. Alternative providers of hydrogen infrastructure must not be excluded either”. [See more]	Press release
	2.2	14.04.2023	LEAG can acquire Wismar Pellets	"The Bundeskartellamt has cleared the acquisition of Wismar Pellets GmbH by Lausitz Energie Vorsorge- und Entwicklungsgesellschaft Brandenburg mbH & Co. KG (LEAG) within the one-month deadline of first-phase merger control. Andreas Mundt, President of the Bundeskartellamt: “The wood pellet market is in motion. LEAG already has three pellet plants in Saxony, Saxony-Anhalt and Brandenburg, and by acquiring Wismar Pellets it will also own the largest pellet plant in northern and eastern Germany. We examined the project in great detail and found that ultimately it will not pose a serious competition problem. Regarding the sale of pellets to private households and small businesses, there are no geographical overlaps in the parties’ operations. The supply to larger customers involves longer transportation distances and a great number of competitors, including integrated pellet businesses which are connected to sawmills. Customers will still have sufficient options to choose from on all the markets affected." [See more]	Press release
	2.3	05.04.2023	Apple also subject to provisions for large digital companies under Section 19a GWB	"The Bundeskartellamt decided that Apple Inc. based in Cupertino, USA, is an undertaking of paramount significance for competition across markets. Apple and its subsidiaries are thus subject to extended abuse control pursuant to Section 19a of the German Competition Act (GWB). Section 19a GWB came into force in January 2021 as part of an amendment to the competition act. In a two-step approach the Bundeskartellamt can prohibit companies which are of paramount significance for competition across markets from engaging in anti-competitive practices.”[See more]	Press release
3. Austrian Competition Courts
	3.1	05.04.2023	OLG Wien, 27 Kt 6/22t – Tischlerei Lechner GmbH (Price agreements, market allocation, information exchange) Date of the decision: 18/10/2022	A fine amounting to EUR 100,000.00 is imposed on the defendant pursuant to Section 29 para. 1a for participation in a single and continuous infringement pursuant to Section 1(1) of the Austrian Cartel Act (KartG) in the form of illegal price agreements, market sharing and exchange of information with competitors, in particular by agreeing on the winning bidder and subsequently submitting cover bids in relation to tenders in the field of construction and furniture joinery work in Lower Austria and Vienna in the period from February 2011 up to and including May 2019. [See more]	Judgment (in German)
4. EU COM
	4.1	28.04.2023	Antitrust: Commission opens investigation into possible anticompetitive practices by Renfe in online rail ticketing	"Renfe is the Spanish state-owned rail incumbent operator. Renfe sells its tickets offline and online either (i) directly via its websites and apps (i.e. Renfe and Cercanías) and mobility platform (i.e. dōcō); or (ii) indirectly through third-party ticketing platforms. Third-party ticketing platforms are companies that provide online ticketing services to customers through apps or websites (i.e. online travel agencies). The Commission has concerns that Renfe may have restricted competition in the Spanish market for online rail ticketing services by refusing to provide third-party ticketing platforms with: (i) full content concerning its range of tickets, discounts and features; and (ii) real time data (pre-journey, on-journey or post-journey) related to its passenger rail transport services."[See more]	Press release
	4.2	25.04.2023	Digital Services Act: Commission designates first set of Very Large Online Platforms and Search Engines	"Today, the Commission adopted the first designation decisions under the Digital Services Act (DSA), designating 17Very Large Online Platforms(VLOPs) and 2Very Large Online Search Engines(VLOSEs) that reach at least 45 million monthly active users." [See more]	Press release
	4.3	20.04.2023	Mergers: Commission further cuts red tape for merging business	"The European Commission has today adopted a package to further simplify its procedures for reviewing concentrations under the EU Merger Regulation. The package includes: (i) a revised Merger Implementing Regulation (‘Implementing Regulation'), (ii) a Notice on Simplified Procedure (‘Notice'), and (iii) a Communication on the transmission of documents (‘Communication')." [See more]	Press release
	4.4	18.04.2023	Antitrust: Commission confirms unannounced inspections in the fashion sector	"On 18 April 2023, the European Commission has started unannounced inspections at the premises of companies active in the fashion industry in several Member States. In parallel, the Commission has sent out formal requests for information to companies active in the same sector. The Commission has concerns that the companies concerned may have violated EU antitrust rules that prohibit cartels and restrictive business practices including certain horizontal and vertical restrictions (Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the European Economic Area Agreement). The Commission officials were accompanied by their counterparts from the relevant national competition authorities of the Member States where the inspections were carried out." [See more]	Press release
	4.5	17.04.2023	Antitrust: Commission prolongs Motor Vehicle Block Exemption Regulation and updates the Supplementary Guidelines	"The European Commission has prolonged the Motor Vehicle Block Exemption Regulation (‘MVBER') for five years, meaning that it will now be applicable until 31 May 2028. It has also updated the Supplementary Guidelines for the sector. The revised Guidelines will help companies in the automotive sector assess the compatibility of their vertical agreements with EU competition rules, while ensuring that aftermarket operators, including garages, continue to have access to vehicle-generated data necessary for repair and maintenance." [See more]	Press release
	4.6	12.04.2023	Mergers: Commission sends Broadcom Statement of Objections over proposed acquisition of VMware	"The European Commission has informed Broadcom of its preliminary view that its proposed acquisition of VMware may restrict competition in the market for certain hardware components which interoperate with VMware's virtualisation software."[See more]	Press release
	4.7	03.04.2023	Mergers: Commission opens in-depth investigation into the proposed transaction between Orange and MasMovil	"The European Commission has opened an in-depth investigation to assess, under the EU Merger Regulation, the proposed creation of a joint venture by Orange and MasMovil. The Commission is concerned that the transaction may reduce competition in the retail supply of mobile and fixed broadband services as well as of multiple-play bundles in Spain." [See more]	Press release
5. EC / ECJ
	5.1.	20.04.2023	Judgment of the Court in Case C-25/21 Repsol	"Thus, the Court considers that, in order to guarantee the effective application of Articles 101 and 102 TFEU in the context of those actions, the existence of an infringement of EU competition law found in such decisions [by national competition authorities] must be deemed to be established by the applicant until proof to the contrary is adduced, thereby shifting the burden of proof defined by Article 2 of Regulation No 1/2003 to the defendant, provided that the nature and the material, personal, temporal and territorial scope of the alleged infringements that are the subject matter of the actions brought by the applicant correspond to those of the infringement found in those decisions. However, where the correspondence thus required is only partial, the findings in such a decision constitute an indication of the existence of the facts to which those findings relate."[See more]	Judgment