Newsbulletin February 2024 - CERHA HEMPEL Rechtsanwälte GmbH

Authority		Date	Title	Abstract	Type of publication
1. AFCA (BWB)
	1.1	27.02.2024	Construction cartel update: AFCA applies for Leithäusl to be fined EUR 1.25 million	As part of its investigations into the Austrian construction industry, the Austrian Federal Competition Authority (AFCA) filed an application with the Cartel Court on 26.02.2024 to have a fine imposed on Leithäusl. The anti-competitive practices of Leithäusl Gesellschaft m.b.H. (hereinafter "Leithäusl") are part of an overall infringement which involved the entire Republic of Austria and in which the companies involved participated to different extent. The large number of collusive construction projects throughout Austria concerned both civil engineering and building construction, with road construction playing a particularly important role. The aim of these practices was to minimise or exclude competition in order to help each other win contracts and thus secure market share. Leithäusl participated directly in the overall infringement in Lower Austria, Vienna and Styria in the civil engineering sector in the period from at least July 2002 to October 2017. [ See more]	Press release (German)
	1.2	26.02.2024	Unfair trading practices: BWB presents its annual report	The BWB published its report (Link - German) on the Fair Competition Act (FCA) on 26 February 2024. BWB also submitted a further application to the Cartel Court for the imposition of fines against a wholesaler in connection with the sale of agricultural and food products. The BWB is the competent enforcement authority for violations under the FCA and is required to prepare an annual report on its activities. This includes the number of complaints received in the previous year and the number of investigations initiated or completed in the previous year. An overview of the FWBG (Fair Trade Practices Act) can be found here: Unfair Trading Practices: BWB Federal Competition Authority. (Link - German) [See more]	Press Release (German)
	1.3	26.02.2024	Unfair trading practices against fruit producers: BWB filed an application for a fine against wholesalers with the Cartel Court	On 23 February 2024, the Federal Competition Authority filed an application with the Cartel Court for the imposition of appropriate fines for violations of the Fair Trade Practices Act (FWBG). The application concerns the area of unfair trading practices in connection with the sale of agricultural and food products, specifically various types of apples. As the point of contact for complaints regarding trade practices in connection with the sale of agricultural and food products, the Fairness Office (BMLF) informed the BWB about possible violations by a buyer at the whole-sale level against two fruit producers in connection with late payments for the agricultural products they supplied. The investigations subsequently initiated by the Federal Competition Authority revealed that in a total of 14 cases, payments for the sale of non-perishable agricultural products were made more than 60 days after the end of the delivery period for these deliveries, with the majority of these payments being made in instalments over longer periods of time. In the opinion of the BWB, this is an illegal trading practice. [See more]	Press Release (German)
	1.4	22.02.2024	Rohrdorfer/Asamer merger: AFCA files request for examination with Cartel Court	The Austrian Federal Competition Authority (AFCA) received notification of the merger on 10 January 2024. Following an application for a two-week extension by the merger applicant, the deadline for completion of the examination was moved to 21 January 2024. In the AFCA's view, the planned merger raises competition concerns and cannot be cleared in its current form. It therefore applied to the Cartel Court for an in-depth review of the merger (Phase II) on 21 February 2024. According to the merger notification (Z-6472), the applicant Südbayerisches Portland-Zementwerk Gebr. Wiesböck & Co. GmbH (“Rohrdorfer”) intends to acquire 49% of the shares in and thereby joint control of ASAMER Kies- und Betonwerke GmbH (“Asamer”). The planned merger concerns the industry sector of C - manufacture of ready-mixed concrete. [See more]	Press Release
	1.5	16.02.2024	BWB confirms leniency status of FCC Austria Abfall Service AG and files application for appropriate fine with the Cartel Court	Following in-depth investigations in the waste management industry, BWB filed an initial application with the Cartel Court on 15 February 2024 against FCC Austria Abfall Service AG ("FCC") for price fixing, market sharing and the exchange of competition-sensitive information. FCC participated in an Austria-wide cartel from at least July 2002 to March 2021. [See more]	Press Release (German)
	1.6	08.02.2024	Merger of MFE MEDIAFOREUROPE N.V. and ProSiebenSat.1 Media SE approved subject to conditions	The media merger of MFE MEDIAFOREUROPE N.V. (MFE) and ProSiebenSat.1 Media SE (P7S1) was notified to the AFCA on 21 November 2023. MFE planned to raise its current stake in P7S1 by the time of P7S1’s next ordinary annual general meeting, thereby gaining de facto sole control over P7S1. To maintain media plurality, MFE has now agreed to several commitments.[ See more]	Press Release Commitments (German) Case Report (German)
	1.7	02.02.2024	Market abuse: AFCA files application for appropriate fine to be imposed on Österreichische Post AG	On 23 January 2024, the Austrian Federal Competition Authority (AFCA) filed an application with the Cartel Court for the imposition of an appropriate fine on Österreichische Post AG. These proceedings came after individual court proceedings brought by several companies against Austrian Post. The prior individual proceedings concerned a legal action against Österreichische Post AG aimed at remedying abusive conduct based on discriminatory discount practices. [See more] The Cartel Court dismissed their applications for interlocutory injunctions but granted the request for termination of the abusive conduct. Österreichische Post AG disputed the Cartel Court’s decision and lodged an appeal with the Supreme Court of Justice sitting as the Supreme Cartel Court. The Supreme Cartel Court rejected the appeal (see press release of 13 January 2022). [See more]	Press Release
2. GFCO (BKartA)
	2.1	26.02.2024	Conclusion of proceeding on DFL’s joint selling of media rights: Bundeskartellamt tolerates DFL’s marketing model	The Bundeskartellamt has completed its examination of the marketing model based on which Deutsche Fußball Liga (DFL) intends to sell the media rights to Bundesliga and Bundesliga 2 matches from the 2025/26 season onwards. DFL has been informed in writing that the model it proposed will be tolerated by the Bundeskartellamt. The parties to the proceeding had the opportunity to comment on the authority’s preliminary assessment (see press release of 30 January 2024). Andreas Mundt, President of the Bundeskartellamt: “Having concluded the proceeding, we have now set the guidelines under competition law for the upcoming sale of media rights. We have expressly requested prompt coverage of all the Bundesliga matches’ highlights on free-to-air TV. We have also ensured with regard to live broadcasting rights that the auction’s structure includes essential elements of competition to give interested parties with fewer financial resources a chance to acquire broadcastingrights.” [ See more]	Press release
	2.2	08.02.2024	Bundeskartellamt clears merger of defence electronics manufacturers Hensoldt and ESG	The Bundeskartellamt has today cleared the acquisition by Hensoldt Holding Germany GmbH, Taufkirchen, of ESG Elektroniksystem- und Logistik-GmbH, Munich. The federal government holds a 25.1 per cent stake in Hensoldt through the German promotional bank KfW. Andreas Mundt, President of the Bundeskartellamt: “"The merger does not raise any competition concerns as the two companies have so far mainly offered different products and services in the area of security and defence electronics".” Hensoldt is a manufacturer of defence electronics hardware. Its product range focuses on radars and optoelectronic systems. ESG, in contrast, is a system integrator and mainly develops, integrates and provides support for third-party electronic systems, mostly from the defence industry. ESG’s services include not only the integration of different electronic components, such as those of the Bundeswehr’s fighter jets, but also spare parts management. [See more]	Press release
	2.3	06.02.2024	50+1 proceeding – Current stage of the proceeding	In its proceeding to assess under competition law the so-called 50+1 rule, the Bundeskartellamt has informed Deutsche Fußball Liga (DFL) and the third parties admitted to the proceeding of the current stage of and the next steps in the proceeding. In its assessment under competition law of DFL’s proposals for amending its League Statutes (see press release of 13 July 2023), the Bundeskartellamt now also has to take into consideration the European Court of Justice’s most recent case law. The Court passed three judgments on 21 December 2023 clarifying the relation between sports association rules and competition law (case C-333/21 “European Superleague Company”; case C 124/21 “ISU”; case C-680/21 “Royal Antwerp”). Andreas Mundt, President of the Bundeskartellamt: “"We will examine these judgments and discuss what effect they may have on our assessment and the next steps in the 50+1 proceeding."” [See more]	Press Release
3. EU COM
	3.1	23.02.2024	Commission clears acquisition of Bolloré Logistics by CMA CGM, subject to conditions	The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Bolloré Logistics SE (‘Bolloré Logistics') by CMA CGM S.A. (‘CMA CGM'). The approval is conditional upon full compliance with the commitments offered by the parties. CMA CGM and Bolloré Logistics are both international transport and logistics companies. CMA CGM provides container liner shipping and port terminal services while Bolloré Logistics offers freight forwarding and contract logistics services. [See more]	Press release
	3.2	20.02.2024	Commission approves joint venture between Orange and MásMóvil in Spain, subject to conditions	The European Commission has approved, under the EU Merger Regulation, the proposed creation of a joint venture by Orange and MásMóvil. The approval is conditional upon full compliance with a commitments package offered by Orange and MásMóvil. Today's decision follows an in-depth investigation of the proposed transaction. Orange is a full mobile network operator while MásMóvil is a hybrid mobile network operator. MásMóvil relies on its own mobile network, which does not cover the entire Spanish territory, and on a national roaming agreement with Orange to provide retail mobile services. There are two other mobile network operators active in Spain (Telefónica and Vodafone). There are also several mobile virtual network operators (‘MVNOs') which use the mobile network operators' infrastructure to offer retail mobile services to consumers. Digi is the largest MVNO in Spain.[See more]	Press release
	3.3	16.02.2024	Commission opens first in-depth investigation under the Foreign Subsidies Regulation	Today, the Commission is launching its first in-depth investigation into the potentially market distortive role of foreign subsidies, exercising its powers under the Foreign Subsidies Regulation. This investigation relates to a public procurement procedure. It shows the Commission's determination to preserve the internal market's integrity by ensuring that recipients of foreign subsidies cannot benefit from an unfair advantage to win public contracts in the EU, to the detriment of fair competition. The investigation launched today follows a notification submitted to the Commission by CRRC Qingdao Sifang Locomotive Co., Ltd., a subsidiary of CRRC Corporation, a Chinese state-owned train manufacturer. It concerns a public procurement procedure launched by Bulgaria's Ministry of Transport and Communications, relating to the provision of several electric “push-pull” trains as well as related maintenance and staff training services. [See more]	Press release
	3.4	13.02.2024	Commission approves the acquisition of Asiana by Korean Air, subject to conditions	The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Asiana Airlines Inc. ('Asiana') by Korean Air Lines Co., Ltd ('Korean Air'). The approval is conditional upon full compliance with the remedies offered by Korean Air. Today's decision follows an in-depth investigation of the proposed acquisition. Korean Air is South Korea's largest airline offering international air passenger and cargo services. Asiana, the second largest airline in South Korea, provides similar services. Both airlines have a significant presence in the European Economic Area (‘EEA'). [See more]	Press release
	3.5	08.02.2024	Commission adopts revised Market Definition Notice for competition cases	Commission adopts revised Market Definition Notice for competition cases The European Commission has today adopted a revised Market Definition Notice (“the Notice”). Market definition requires identifying the boundaries of competition between companies when assessing mergers and most antitrust cases. The revised Notice brings the Commission's guidance in line with new market realities, as well as with developments in the Commission's case practice and EU case law. [See more] Remarks by Executive Vice-President Vestager	Press release New Market Definition Notice
	3.6	05.02.2024	Commission welcomes continued airline competition on the routes from Amsterdam to the US	The European Commission welcomes the positive developments at Amsterdam airport enabling new entrant JetBlue Airways Corporation ('JetBlue') to continue operating at the airport over the IATA Summer 2024 Season. The Commission has actively and closely monitored the evolution of the market conditions at Amsterdam airport. Specifically, this concerned the degree of congestion of the airport and the operations of the Blue Skies joint venture ('JV') between Air France-KLM Group, Delta and Virgin Atlantic, to identify any risk of serious and irreparable damage to competition for transatlantic traffic, in particular on the Amsterdam-New York route. The Commission stood ready to intervene with interim measures in case JetBlue did not secure appropriate access to Amsterdam airport for the IATA Summer 2024 Season. [See more]	Press release
4. EC / ECJ
	4.1	09.02.2024	Order of the President of the General Court in case T-1077/23 Bytedance v Commission Digital Markets Act: the application by Bytedance (TikTok) seeking suspension of the Commission decision designating it as a gatekeeper is dismissed	Bytedance has failed to demonstrate the urgency required for an interim order in order to avoid serious and irreparable damage Bytedance Ltd is a non-operating holding company established in China in 2012 which, through local subsidiaries, provides the entertainment platform TikTok. By decision of 5 September 2023, the Commission designated Bytedance as a gatekeeper under the Digital Markets Act 1. In November 2023, Bytedance brought an action for annulment of that decision. By separate document, Bytedance lodged an application for interim measures seeking suspension of that decision. By today’s order, the President of the General Court dismisses Bytedance’s application for interim measures [See more]	Press release
	4.2	01.02.2024	Judgment of the Court in Case C-251/22 P \| Scania and Others v Commission Cartel on the truck market: the Court dismisses Scania’s appeal	The fine of €880.520 million imposed by the Commission on that company for its participation in the cartel is upheld In its judgment of 2 February 2022 1, the General Court dismissed the action brought by Scania for annulment of a decision 2 of the European Commission. In that decision, the Commission found that the companies Scania AB, Scania CV AB and Scania Deutschland GmbH, three entities of the Scania group, which produce and sell heavy trucks used for long-haulage transport, had infringed the rules of EU law prohibiting cartels 3. Those infringements consisted in their participation, from January 1997 to January 2011, with their competitors, in collusive arrangements aimed at restricting competition on the market for medium and heavy trucks in the European Economic Area (EEA). The Commission imposed a fine of €880,523,000 on Scania. Scania appealed against the judgment of the General Court to the Court of Justice, which today dismisses it in its entirety, thereby upholding the judgment of the General Court. [See more]	Press release
5. DMA / DSA
	5.1	13.02.2024	Commission closes market investigations on Microsoft’s and Apple’s services under the Digital Markets Act	The Commission has adopted decisions closing four market investigations that were launched on 5 September 2023 under the Digital Markets Act (DMA), finding that Apple and Microsoft should not be designated as gatekeepers for the following core platform services: Apple’s messaging service iMessage, Microsoft’s online search engine Bing, web browser Edge and online advertising service Microsoft Advertising. [See more]	Press Release
6. Sustainability
	6.1	28.02.2024	CSDDD: Back to the drawing board after EU Council rejects draft	After the two EU co-legislators, the Council of the EU and the European Parliament, provisionally reached an agreement on the CS3D on 14 December 2023, the Council and the Parliament still had to officially adopt the final text before it could become law. After having delayed the voting schedule twice due to objections primarily from Germany and Italy (but also from a few EU Member States who rallied behind the two), the Belgian Presidency of the Council proceeded with the vote on 28 February 2024, but failed to secure the qualified majority necessary to pass it.	Press release