Newsbulletin January 2024 - CERHA HEMPEL Rechtsanwälte GmbH

Authority		Date	Title	Abstract	Type of publication
1. AFCA (BWB)
	1.1	31.01.2024	Construction cartel update: AFCA applies for STEINER BAU to be fined EUR 1.3 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 30.01.2024 to have a fine imposed on STEINER BAU Gesellschaft m.b.H. In line with the company’s regional focus of activities, STEINER BAU Gesellschaft m.b.H. (hereinafter referred to as “STEINER BAU”) was involved as a joint participant in anti-competitive price fixing and price coordination, market divisions and the exchange of information with competitors in relation to public and private construction tenders, particularly in the Austrian province of Carinthia. Some construction projects in Styria were also affected by the infringement. STEINER BAU’s actions form part of a wider infringement of cartel law that has occurred across the whole of Austria, with each of the companies involved having participated to varying degrees. The many arranged construction contracts encompass both building construction and civil engineering projects throughout Austria, with road building projects predominating. The collusive behaviour was aimed at reducing or excluding competition, helping each other to win construction contracts and thus securing market shares. The AFCA applied to the Cartel Court to have a fine of EUR 1.3 million imposed on STEINER BAU owing to the company’s involvement as a joint participant.[See more]	Press release
	1.2	31.01.2024	Facade construction cartel: Cartel Court fines Simsek Bau GmbH	The Cartel Court has imposed a fine of EUR 63,000 on Simsek Bau GmbH following a request submitted by the AFCA. On 7 June 2023, the Austrian Federal Competition Authority (AFCA) filed an application for a fine to be imposed on Simsek Bau GmbH. The company cooperated, acknowledging the infringement with the involvement of the Federal Cartel Prosecutor (see press release of 7 June 2023 ). The Cartel Court fully upheld AFCA’s reasoning and imposed a fine of EUR 63,000. The AFCA had substantiated its claims by presenting evidence of price fixing and market divisions, as well as the exchange of other sensitive information between Simsek Bau GmbH and its competitors. The concerted practices concerned various construction projects and tenders in the facade construction sector. The anti-competitive conduct took place in and around Vienna and Lower Austria during 2017. The decision is final. [See more]	Press release
	1.3	18.01.2024	Facade construction cartel: AFCA applies to Cartel Court for imposition of an appropriate fine on Riegerbau GmbH	In the course of its investigations into the facade construction sector, the Austrian Federal Competition Authority (AFCA) filed another application with the Cartel Court on 20 December 2023 to have the company Riegerbau GmbH fined for anti-competitive conduct (i.e. bid-rigging, horizontal collusion and exchange of competitively sensitive information). [ See more]	Press Release
	1.4	17.01.2024	Construction cartel: Cartel Court fines Hitthaller + Trixl EUR 1.36 million at AFCA’s request	On 10 November 2023, following a request submitted by the AFCA, the Cartel Court issued a decision imposing a fine of EUR 1.36 million on Hitthaller + Trixl for its involvement in a single and continuous infringement. On 7 July 2023, the Austrian Federal Competition Authority (AFCA) filed an application with the Cartel Court to impose a fine of EUR 1.36 million on Hitthaller + Trixl Baugesellschaft m.b.H. as well as its parent company PHB GmbH (hereinafter referred to jointly as “Hitthaller + Trixl”, see (press release of 11 July 2023). On 10 November 2023, the Cartel Court imposed a fine of EUR 1.36 million on Hitthaller + Trixl for its involvement in a single and continuous infringement, taking the form of illegal price fixing, market divisions and the exchange of information with competitors in relation to public and private tenders in the sector of building construction and civil engineering in Austria. This took place in Styria, Carinthia, Lower Austria, Upper Austria, Salzburg and Burgenland over a period from at least December 2005 to December 2016, with the overall infringement being committed between at least July 2002 and October 2017. The decision is final. [See more]	Press Release
	1.5	04.01.2024	Cartel Court imposes a fine of EUR 4.2 million on Südzucker AG at AFCA’s request; the decision is final	On 13 September 2023, following a request submitted by the AFCA, the Cartel Court imposed a fine of EUR 4.2 million on Südzucker AG. The company had infringed cartel law by agreeing to divide the Austrian market for industrial sugar. Südzucker AG has acknowledged the infringement committed between February and October 2006 as part of a settlement procedure (press release of 1 June 2023). This brings the cartel proceedings in the sector of industrial sugar, which have been ongoing for a number of years, to a close. [ See more]	Press Release
	1.6	29.12.2023	Supreme Cartel Court reaches leading decision on illegal merger by REWE	In a decision of 30 November 2023, the Supreme Court of Justice sitting as the Supreme Cartel Court (“KOG”) fully upheld the appeal lodged by the Austrian Federal Competition Authority (AFCA) against the decision by the Vienna Higher Regional Court sitting as the first-instance Cartel Court (“KG”); the proceedings initiated by the AFCA against REWE International AG (“REWE”) related to an illegal merger. The KOG has now ordered the KG to set a “considerable” fine. On 30 June 2018, with the lease contract entering into force, REWE’s subsidiary Merkur Warenhandels AG (now “Billa Plus”, which is part of Billa Aktiengesellschaft) took over a food retail outlet in the WELAS Park shopping centre in Wels in which Weiß Handels GmbH had previously operated a supermarket. REWE did not notify the AFCA of the transaction. On 21 October 2021, the AFCA filed an application with the KG for termination of the infringement of the standstill obligation relating to mergers without notification and to impose an appropriate fine on account of said illegal conduct by REWE. Following a retroactive merger notification (BWB/Z6052), the AFCA subsequently changed its application for termination of the infringement during the ongoing proceedings to an application for findings, with the application for the imposition of an appropriate fine being upheld. With its decision of 15 May 2023, the KG affirmed the existence of a merger subject to notification obligations but, due to a lack of criminal liability on the part of REWE, dismissed AFCA’s applications for a fine and for findings. On 19 June 2023, the AFCA and the second official party, the Federal Cartel Prosecutor, each lodged an appeal with the KOG against this decision. For more details about the facts of the case and the KG’s legal opinion, please refer to our press release of 28 June 2023 .	Press Release
2. GFCO (BKartA)
	2.1	30.01.2024	Based on the preliminary outcome of its examination, the Bundeskartellamt approves DFL’s marketing model for Bundesliga and Bundesliga 2 matches from the 2025/26 season onwards	The Bundeskartellamt has largely 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. The parties involved will now have the opportunity to comment on the Bundeskartellamt’s preliminary assessment. The authority has taken the preliminary view that it can tolerate DFL implementing the model as presented and has informed DFL accordingly. Andreas Mundt, President of the Bundeskartellamt: “"For the upcoming sale of media rights it was important to us that users will continue to have access to prompt free-to-air coverage of the highlights in the future. This coverage ensures that football fans who are unable or unwilling to pay for live broadcasts can still follow the Bundesliga action. We have made sure that the highlights remain available on the main TV channels, not just on the internet. This means that all members of the public will be able to watch the match day highlights".”[See more]	Press release
	2.2	29.01.2024	Bundeskartellamt has no objections to the creation of the joint venture Evangelischer Verbund Augusta Ruhr	The Bundeskartellamt has cleared the creation of a joint venture between four operators affiliated with Protestant parishes in the Ruhr area. The joint venture will be based in Herne, North Rhine-Westphalia, and is to pool the work of the four organisations Innere Mission – Diakonisches Werk Bochum e.V., Evangelischer Kirchenkreis Herne / Castrop-Rauxel KdöR, Diakoniewerk Gelsenkirchen und Wattenscheid e.V. and Evangelische Stiftung Augusta (Bochum). The organisations operate a total of eight hospital sites in Gelsenkirchen, Bochum, Hattingen, Castrop-Rauxel, Herne and Witten. The joint venture will be responsible for more than 2,000 hospital beds, a medical care centre (MVZ) and a number of social welfare institutions. Andreas Mundt, President of the Bundeskartellamt: “"An evaluation of patient flows showed that despite the hospitals’ close proximity to one another and many transport connections, hospital patients in the Ruhr area tend to rarely cross city boundaries. The merger will therefore only create insignificant overlaps."”[See more]	Press release
3. EU COM
	3.1	26.01.2024	Commission report finds active competition enforcement continues to contribute to affordable and innovative medicines	The European Commission has published a report providing an overview of the enforcement of EU antitrust and merger rules by the Commission and the national competition authorities (‘NCAs') in the pharmaceutical sector between 2018 and 2022. Today's report shows that active enforcement of antitrust and merger rules continues to play an important role in delivering European patients' access to a wider choice of affordable and innovative medicines. In particular, it helped to achieve this goal during the challenging period of the coronavirus pandemic. The Commission drafted the report covering medicines and certain medical products in cooperation with the NCAs of the 27 EU Member States, with which the Commission works in the European Competition Network (‘ECN'). It follows a previous report covering the years 2009-2017 that was published in January 2019 . [See more]	Press release [Report]
	3.2	25.01.2024	Commission sends Statement of Objections to six companies in farmed Atlantic salmon cartel case	The European Commission has informed Norwegian salmon producers Cermaq, Grieg Seafood, Bremnes, Lerøy, Mowi and SalMar of its preliminary view that they breached EU antitrust rules by colluding to distort competition in the market for spot sales of Norwegian farmed Atlantic salmon in the EU. The Commission has concerns that, between 2011 and 2019, the six salmon producers, exchanged commercially sensitive information, relating to sales prices, available volumes, sales volumes, production volumes and production capacities, as well as other price-setting factors. The suspected aim of this alleged conduct was to reduce normal uncertainty in the market for spot sales of Norwegian farmed Atlantic salmon into the EU.[See more]	Press release
	3.3	24.01.2024	Commission opens in-depth investigation into proposed acquisition of Air Europa by IAG	The European Commission has opened an in-depth investigation to assess, under the EU Merger Regulation, the proposed acquisition of sole control of Air Europa Holding, S.L. (‘Air Europa') by International Consolidated Airlines Group, S.A. (‘IAG'). The Commission has preliminary concerns that the transaction may reduce competition in the market for passenger air transport services on several domestic, short-haul and long-haul routes in and out of Spain. IAG and Air Europa operate an extensive network of domestic routes in Spain, short-haul routes within the European Economic Area (‘EEA') as well as long-haul routes, in particular to and from Latin America.[See more]	Press release
	3.4	23.01.2024	Commission opens in-depth investigation into proposed acquisition of stake in ITA Airways by Lufthansa	The European Commission has opened an in-depth investigation to assess, under the EU Merger Regulation, the proposed acquisition of joint control of ITA Airways (‘ITA') by Deutsche Lufthansa AG (‘Lufthansa”') and the Italian Ministry of Economy and Finance (‘MEF'). The Commission has preliminary concerns that the transaction may reduce competition in the market for passenger air transport services on several short-haul and long-haul routes in and out of Italy. [See more]	Press release
	3.5	17.01.2024	Commission accepts commitments by Renfe opening up competition in online rail ticketing in Spain	The European Commission has made commitments by Renfe legally binding under EU antitrust rules. The commitments address the Commission's preliminary competition concerns relating to Renfe's refusal to supply all its content and real-time data related to its passenger rail transport services to rival ticketing platforms. [See more]	Press release [Commitments]
	3.6	09.01.2024	Commission launches calls for contributions on competition in virtual worlds and generative AI	The European Commission has launched today two calls for contributions on competition in virtual worlds and generative artificial intelligence (‘AI') and sent requests for information to several large digital players. Interested parties are invited to submit their responses to the calls for contributions by 11 March 2024. The calls for contributions on virtual worlds and generative AI are available here . Interested parties may contribute to one of those two calls for contributions, or to both, as they wish. [See more]	Press release
4. EC / ECJ
	4.1	18.01.2024	Opinion of the Advocate General in the case C-240/22 P Commission v Intel Corporation	Advocate General Medina: the Court should confirm that the Commission erred in applying the AEC test with respect to HP and Lenovo [See more]	Press release
	4.2	11.01.2024	Opinion of the Advocate General in the case C-48/22 P Google and Alphabet v Commission (Google Shopping)	Advocate General Kokott proposes that the Court of Justice confirm the fine of €2.4 billion imposed on Google for favouring its own comparison shopping service [See more]	Press release
	4.3	21.12.2023	Judgment of the Court of Justice in Case C-333/21 European Superleague Company	The FIFA and UEFA rules on prior approval of interclub football competitions, such as the Super League, are contrary to EU law The FIFA and UEFA rules making any new interclub football project subject to their prior approval, such as the Super League, and prohibiting clubs and players from playing in those competitions, are unlawful. There is no framework for the FIFA and UEFA rules ensuring that they are transparent, objective, non-discriminatory and proportionate. Similarly, the rules giving FIFA and UEFA exclusive control over the commercial exploitation of the rights related to those competitions are such as to restrict competition, given their importance for the media, consumers and elevision viewers in the European Union. [See more]	Press release
	4.4	21.12.2023	Judgment of the Court of Justice in Case C-124/21 P International Skating Union v Commission	The rules of the International Skating Union on the prior authorisation of skating competitions infringe EU law. Following the European Commission and the General Court, the Court of Justice confirms that the rules of the International Skating Union, which empower it to subject international skating competitions to its approval and to impose severe penalties on athletes who take part in unauthorised competitions, are unlawful because they are not subject to any guarantee ensuring that they are transparent, objective, non-discriminatory and proportionate. They give the ISU a clear advantage over its competitors and have unfavourable effects for athletes as well as consumers and broadcast audiences. [See more]	Press release
	4.5	20.12.2023	Judgment of the General Court in case T-106/17, T-113/17 JPMorgan Chase and Others v Commission	Competition in the area of Euro Interest Rate Derivatives: the General Court dismisses most of the pleas in the actions brought by JPMorgan Chase and Crédit agricole [See more]	Press release
	4.6	20.12.2023	Judgments of the General Court in Cases T-53/21, T-55/21, T-56/21, T-58/21, T-59/21, T-60/21, T-61/21, T-62/21, T-63/21, T-64/21, T-65/21 EVH v Commission	The actions of 11 German municipal authorities against the Commission’s approval of the acquisition of the distribution and retail energy business as well as some generation assets of Innogy by E.ON are dismissed. The Commission did not make any manifest errors in its assessment of the compatibility of that concentration, which is part of a complex asset swap between RWE and E.ON, with EU competition law [See more]	Press release
5. DMA / DSA

6. Sustainability
	6.1		Final Text Corporate Sustainability Directive	In December of last year the EU Parliament and the Council reached a preliminary agreement on the new Corporate Sustainability Directive, the agreed upon text is finaly here.	Release [Text]