Newsbulletin June 2023 - CERHA HEMPEL Rechtsanwälte GmbH

Authority		Date	Title	Abstract	Type of publication
1. AFCA (BWB)
	1.1	29.06.2023	Construction cartel: AFCA appeal to Supreme Court successful; Supreme Cartel Court orders first-instance Cartel Court to continue proceedings against STRABAG	"After new facts and evidence had come to light, the Austrian Federal Competition Authority (AFCA) applied for a judicial review of the final decision of 21 October 2021, according to which two companies from the STRABAG Group (“STRABAG”) were fined EUR 45.37 million. The AFCA disputed STRABAG’s full compliance with its obligations under the leniency programme. The Cartel Court rejected AFCA’s application for amendment of 20 October 2022. The AFCA and the Federal Cartel Prosecutor appealed to the Supreme Court of Justice sitting as the Supreme Cartel Court against this decision on 22 November 2022. The Supreme Court of Justice sitting as the Supreme Cartel Court issued a decision on 25 May 2023 in which it upheld the appeal in full, repealing the Cartel Court’s decision of 20 October 2022 without replacement and ordering the Cartel Court to continue the proceedings pertaining to the application for amendment and refrain from considering the original reason for dismissal." [See more]	Press release
	1.2	27.06.2023	Energy Task Force: AFCA and E-Control deliver interim report	"The Austrian Federal Competition Authority (AFCA) and Energie-Control (E-Control) began closer cooperation in January 2023 with the launch of a joint investigation into higher electricity and gas prices." [See more]	Press release
	1.3	22.06.2023	AFCA files appeal to Supreme Cartel Court in connection with illegal merger proceedings	"On 19 and 20 June 2023, the Austrian Federal Competition Authority (AFCA) and the Federal Cartel Prosecutor each filed an appeal against the Cartel Court’s decision of 15 May 2023 to the Supreme Court sitting as the Supreme Cartel Court. The appeals were filed against a decision of the Cartel Court reached in proceedings brought by the AFCA against REWE International AG (REWE). They relate to material issues of merger control and the application of § 191 of the Code of Criminal Procedure (StPO), which deals with the discontinuance of proceedings on the ground of insignificance, analogously in cartel law." [See more]	Press release
	1.4	22.06.2023	Update on sector inquiry into food industry: AFCA questions price comparison sites	"The Austrian Federal Competition Authority (AFCA) sent questions to seven price comparison sites on 22 June 2023 in connection with its inquiry into the food industry." [See more]	Press release
	1.5	21.06.2023	AFCA presents its Annual Report for 2022	"The AFCA again set an example for free and fair competition in 2022. Interim Director General Natalie Harsdorf-Borsch presented AFCA’s Annual Report for 2022 to the Parliament’s Committee on Economy, Industry and Energy on 21 June 2023." [See more]	Press release
	1.6	15.06.2023	Updated “Cartel law and compliance” folder published	"The Austrian Federal Competition Authority (AFCA) and the Austrian Federal Economic Chamber (WKO) jointly presented a second, updated edition of the information folder at an event dedicated to cartel law and compliance."[See more]	Press release
	1.7	13.06.2023	Supreme Cartel Court confirms its ruling on third-party access to files in cartel proceedings	"The Federal Cartel Act (KartG) stipulates under “Protection of business secrets and access to files” that third parties not involved in cartel proceedings may only be granted access to Cartel Court (KG) files if all the parties concerned agree." [See more]	Press release
	1.8	08.06.2023	Construction cartel: Supreme Cartel Court dismisses appeal in a correction procedure	"In January 2023, a company fined by the Cartel Court filed for correction of certain points in the decision due to their being obviously inaccurate. The procedure was linked to AFCA’s investigations into the construction industry (construction cartel)." [See more]	Press release
	1.9	07.06.2023	Facade construction cartel: AFCA files application to Cartel Court for imposition of a fine of EUR 63,000 on Simsek Bau GmbH	"In the course of its investigations into the facade construction sector, the Austrian Federal Competition Authority (AFCA) filed an application with the Cartel Court on 7 June 2023 to impose a fine on Simsek Bau GmbH for anti-competitive conduct." [See more]	Press release
	1.10	06.06.2023	AFCA files application for a fine for market abuse in the automotive industry	"Following an application by a car dealership and servicing garage, and subsequent antitrust proceedings, the Supreme Court sitting as the Supreme Cartel Court issued a decision with legal effect on 17 February 2021 (16 Ok 4/20d), instructing the Austrian sole importer of new vehicles and original spare parts of the Peugeot marque to end its abuse of a dominant market position (as effected by several individual acts). The Federal Cartel Prosecutor and the AFCA joined these proceedings as official parties; the AFCA has now applied for the imposition of an appropriate fine with regard to these infringements." [See more]	Press release
	1.11	02.06.2023	Cartel Law Moot Court 2023 – Winners announced!	"Best Speaker: Adrian Müry, Team Universities of Salzburg/Linz/Graz, mentored by Burgstaller & Partner Best Team: Team University of Salzburg (Marie-Christin Prechtl, Pia Möslinger-Gehmayr, Tania Veronica Loderbauer and Julia Helminger), mentored by CERHA HEMPEL"[See more]	Press release
2. GFCO (BKartA)
	2.1	29.06.2023	Frozen Pizza: Takeover of Galileo by Dr. Oetker cleared	"Following extensive market investigations the Bundeskartellamt has cleared the takeover of Galileo Lebensmittel GmbH & Co. KG (Galileo) by the Dr. August Oetker KG group (Dr. Oetker) in the first phase of the merger control proceeding."[See more]	Press release
	2.2	28.06.2023	Open markets for digital mobility services – Deutsche Bahn must end restrictions of competition	"According to the Bundeskartellamt’s decision of 26 June 2023, Deutsche Bahn AG (DB) is in violation of competition law due to abusing its market power in relation to mobility platforms. The Bundeskartellamt has ordered Deutsche Bahn to change certain practices and contractual clauses." [See more]	Press release
	2.3	23.06.2023	Pool equipment industry: Bundeskartellamt clears merger between Fluidra and Meranus	"Following an in-depth examination, the Bundeskartellamt has cleared plans by Fluidra Commercial S.A.U, Sant Cugat del Vallès, Barcelona, Spain (“Fluidra”), to acquire Meranus Gesellschaft für Schwimmbad- und Freizeitausrüstungen mbH, Haan and Lauchhammer, and Aquacontrol, Gesellschaft für Meß-, Regel- und Steuerungstechnik zur Wasseraufbereitung mbH, Lauchhammer (all three target companies combined: “Meranus”)". [See more]	Press release
	2.4	22.06.2023	Abuse control relating to energy price relief measures: proceedings to examine power sector initiated	"The Bundeskartellamt has again initiated examination proceedings based on the laws on energy price relief. The proceedings now initiated focus on energy suppliers that have applied for advance payments with regard to the supply of electricity under the German laws on energy price relief."[See more]	Press release
	2.5	21.06.2023	Statement of objections issued against various of Google’s practices in connection with Google Automotive Services and Google Maps Platform	"The Bundeskartellamt has today forwarded its preliminary legal assessment of Google’s practices in connection with Google Automotive Services (GAS) to Alphabet Inc., Mountain View, USA, and Google Germany GmbH, Hamburg. At the present stage of the proceeding, the Bundeskartellamt intends to prohibit various of Google’s anti-competitive practices in application of the new provisions for large digital companies (Section 19a of the German Competition Act (GWB))." [See more]	Press release
	2.6	13.06.2023	German Initiative on Sustainable Cocoa – Bundeskartellamt sees no reason for detailed examination	"The Bundeskartellamt currently sees no reason for a detailed examination of the German Initiative on Sustainable Cocoa (“Forum Nachhaltiger Kakao e.V.” – “Kakaoforum”). The “Kakaoforum” is a joint initiative of representatives of public authorities, companies of the cocoa and chocolate industry, a major part of the German retail grocery trade and international non-governmental organisations (NGOs)." [See more]	Press release
	2.7	12.06.2023	Bundeskartellamt clears merger between va-Q-tec AG and EQT (Envirotainer)	"The Bundeskartellamt has cleared plans by EQT Fund Management S.à.r.l., Luxembourg, to acquire shares in and sole control of va-Q-tec AG, Würzburg. The target company offers products and solutions in the area of thermal insulation and cold chain logistics. Private equity firm EQT already has control of the Swedish supplier Envirotainer AB, Sollentuna, Sweden. Envirotainer develops, manufactures and leases temperature-controlled containers that are primarily used in the air transport of biopharmaceuticals." [See more]	Press release
	2.8	07.06.2023	Meta (Facebook) introduces new accounts center – an important step in the implementation of the Bundeskartellamt’s decision	"Meta has announced plans to introduce a new accounts center. The accounts center will allow Meta’s customers for the first time to make a largely free and informed decision about whether they want to use Meta’s services separately or in combined form. Using the services in combined form would allow them to use additional functionalities such as crossposting, where a post is simultaneously published across several social media outlets, but Meta would then use the combined data for advertising purposes." [See more]	Press release
	2.9	02.06.2023	Bundeskartellamt examines potential anti-competitive impediment of 1&1 by Vodafone and Vantage Towers	"Following a complaint filed by 1&1 Mobilfunk GmbH, Düsseldorf, the Bundeskartellamt is examining whether Vodafone GmbH, Düsseldorf or its affiliated company Vantage Towers AG, Düsseldorf, may have violated German and European competition law by impeding 1&1’s options for co-using radio masts." [See more]	Press release
	2.10	01.06.2023	One-year anniversary of the Competition Register for Public Procurement – a digital register to support public contracting entities in public procurement procedures	"A year ago today, the Competition Register for Public Procurement was put into full operation at the Bundeskartellamt. The Competition Register provides all public contracting authorities, sector contracting entities and concession grantors in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences. The obligation for contracting entities to consult the Competition Register as well as various rights to information relating to the Register became applicable on 1 June 2022." [See more]	Press release
3. EU COM
	3.1	27.06.2023	Mergers: Commission sends Orange and MasMovil Statement of Objections over their proposed joint venture in Spain	"The European Commission has informed Orange and MasMovil of its preliminary view that their proposed joint venture may reduce competition in the retail supply of mobile and fixed internet services as well as of multiple-play bundles in Spain. Orange and MasMovil are the second and fourth largest providers of retail mobile and fixed internet services in Spain. There are in total four mobile network operators active in Spain (i.e. Telefónica, Vodafone, Orange, and MasMovil). There are also several mobile and fixed virtual network operators which use network operators' infrastructure to offer mobile and fixed telecoms services to consumers."[See more]	Press release
	3.2	26.06.2023	Antitrust: Commission seeks feedback on commitments offered by Renfe over possible anticompetitive practices in online rail ticketing in Spain	"The European Commission invites comments on commitments offered by Renfe to address competition concerns over its alleged refusal to supply full content and real-time data to rival ticketing platforms operating in the Spanish online passenger rail ticket distribution market."[See more]	Press release
	3.3	14.06.2023	Antitrust: Commission sends Statement of Objections to Google over abusive practices in online advertising technology	"The European Commission has informed Google of its preliminary view that the company breached EU antitrust rules by distorting competition in the advertising technology industry (‘adtech'). The Commission takes issue with Google favouring its own online display advertising technology services to the detriment of competing providers of advertising technology services, advertisers and online publishers."[See more]	Press release
	3.4	09.06.2023	Mergers: Commission clears acquisition of Lagardère by Vivendi, subject to conditions	"The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Lagardère by Vivendi. The Commission's decision is conditional upon full compliance with the commitments offered by Vivendi. Today's decision follows an in-depth investigation of the proposed acquisition. Vivendi and Lagardère are two large French multi-media groups. In particular, Vivendi (via Editis) and Lagardère (via Hachette) are leading players in book publishing in French-speaking countries of the European Union. Both companies are active throughout the book value chain, from the acquisition of publishing rights to the marketing, distribution and sale of books to retailers. The two groups are also both involved in other media activities, such as press and live entertainment in France. Lagardère is also active in the radio sector and Vivendi in audio-visual production."[See more]	Press release
	3.5	09.06.2023	Mergers: Commission sends Booking Statement of Objections over proposed acquisition of eTraveli	"The European Commission has informed Booking Holdings (‘Booking') of its preliminary view that its proposed acquisition of Flugo Group Holdings AB (‘eTraveli') may allow Booking to strengthen its position on the market for hotel online travel agencies (‘OTAs') in the European Economic Area (‘EEA'). Booking and eTraveli are both active in the provision of OTA services, respectively focusing on hotel OTA and flight OTA services. Booking is also active in the market of metasearch services (‘MSS') mainly through its price comparison platform KAYAK." [See more]	Press release
	3.6	07.06.2023	Antitrust: Commission carries out unannounced inspections in the synthetic turf sector	"The European Commission is carrying out unannounced inspections at the premises of companies active in the synthetic turf industry in several Member States." [See more]	Press release
	3.7	01.06.2023	Antitrust: Commission adopts new Horizontal Block Exemption Regulations and Horizontal Guidelines	"The European Commission has today adopted revised Horizontal Block Exemption Regulations on Research and Development (‘R&D') and Specialisation agreements (‘HBERs'), accompanied by revised Horizontal Guidelines, following a thorough evaluation and review of the current rules. The revised HBERs and Guidelines provide businesses with clearer and up-to-date guidance to help them assess the compatibility of their horizontal cooperation agreements with EU competition rules. The new HBERs will enter into force on 1 July 2023, while the Guidelines will do so following their publication in the Official Journal of the EU." [See more]	Press release