Newsbulletin March 2024

1. AFCA (BWB)

1.1

21.03.2024

Illegal merger: AFCA applies for Lenzing and Palmers to be fined for breaching the Cartel Act

On 12 May 2020, the parties Lenzing Aktiengesellschaft (“Lenzing”) and Palmers Textil Aktiengesellschaft (“Palmers”) notified the Austrian Federal Competition Authority (AFCA) of the establishment of a joint venture, Hygiene Austria LP GmbH. The notification concerned the planned establishment of the full-function joint venture HYGIENE AUSTRIA LP GmbH by Palmers and Lenzing to manufacture and sell protective face masks as a means of combatting the SARS-CoV-19 pandemic. In the AFCA’s view, the merger had been implemented by the parties before being notified and before a completed examination by the competition authority. [See more]

Press release

1.2

11.03.2024

Welding technology cartel: Cartel Court fines Haberkorn EUR 870,000 at AFCA’s request

The Cartel Court has imposed a fine of EUR 870,000 on Haberkorn GmbH and Haberkorn Holding AG (hereinafter referred to jointly as “Haberkorn”) for illegal agreements on resale prices, market divisions and the prohibition of competition, as well as anti-competitive concerted practices. The continuous infringement covered the period from 9 June 2008 to 30 November 2021.

Haberkorn sells technical products, services, lubricants and personal protective equipment for industrial use and the construction sector. The company is headquartered in Wolfurt, Vorarlberg, and has branches all over Austria. [See more]

Press Release

1.3

11.03.2024

Generative artificial intelligence: AFCA submits contribution on competition challenges in response to the European Commission’s call for contribution

European Commission launched call for contributions on competition in virtual worlds and generative AI on 9 January 2024.

The European Commission launched a call for contributions on competition in virtual worlds and generative artificial intelligence on 9 January 2024 (see the Commission’s press release of 9 January 2024). The Austrian Federal Competition Authority (AFCA), in response to the rapid developments, particularly in the field of generative artificial intelligence and the characteristics of digital markets in general (network effects, [a lack of] multi-homing, tipping), has outlined the need to deal with these developments and potential future competition issues at an early stage. The goal should be to keep markets open and therefore competitive.

AFCA’s contribution can be found here. [See more]

Press Release

1.4

04.03.2024

Miele/Metall Zug merger: AFCA files request for examination with Cartel Court

According to the merger notification (Z-6483), the applicant Miele Beteiligungs-GmbH, a company in the Miele Group (“Miele”), plans to create a joint venture (“JV”) with Metall Zug AG (“Metall Zug”). Miele Beteiligungs-GmbH plans to contribute its indirect subsidiary International Steelco S.p.A. and Metall Zug is to contribute its subsidiaries Belimed AG and Belimed Life Science AG. The plan is for Miele to hold a stake of 67% and Metall Zug a stake of 33% in the JV.

In addition to electrical household appliances, Miele also manufactures and markets washers, disinfectors and sterilizers for hospitals and medical/dental practices. Metall Zug is a group of industrial companies engaged in the fields of infection control and contamination prevention.

The planned joint venture’s business areas would comprise the manufacture and sale as well as customer services in the fields of infection control and contamination prevention with (i) washers and disinfectors, (ii) high and low-temperature sterilizers, (iii) endoscope reprocessing devices and (iv) flusher disinfectors. Its customers are hospitals, pharmaceutical companies and laboratories, as well as medical and dental practices.

The AFCA finds that the establishment of the joint venture constitutes an anticompetitive merger. Specifically, the AFCA fears that it would considerably reduce horizontal competition intensity, resulting in higher prices and a lower quality of devices, related services and ancillary products in the field of infection control for hospitals. This would be caused by such factors as the involved companies’ high market shares, the high market concentration, and also – in the AFCA’s opinion – entry barriers for potential new market participants in the relevant markets. [See more]

Press Release

2. GFCO (BKartA)

2.1

26.03.2024

ICN Technologist Forum – competition enforcers convene in first global meeting to strengthen their digital capacities

Representatives from digital markets and technologist teams gathered in Washington, D.C., to take part in the first International Competition Network (ICN) Technologist Forum. The forum, which was held from 25 to 26 March, was organized to share experiences and further promote the digital and technology capacities of competition agencies around the world.

The ICN is a unique global body which offers competition authorities an informal, project-oriented network to enhance their cooperation in matters of competition law enforcement. Since its foundation in 2001, the ICN has grown to include 140 competition authorities around the world. Andreas Mundt, the President of the Bundeskartellamt, has chaired the ICN’s Steering Group since 2013.

Andreas Mundt, President of the Bundeskartellamt and ICN Chair: “The ICN Technologist Forum marks a new chapter of international cooperation. Digital technology is progressing rapidly, especially due to megatrends like AI. Not only do we have to keep pace with technology, we also have to proactively keep markets open. Agencies from around the globe came together in the forum to discuss technological capacities to protect competition and consumers. As we share common goals and face the same challenges, the ICN is an excellent place for us to learn from each other and reaffirm our commitment to consistent and even more effective competition law enforcement in the future.” [See more]

Press release

2.2

20.03.2024

Olympics 2024: Bundeskartellamt secures self-marketing options for Team Germany athletes

At the 2024 Olympic Games in Paris, German athletes and their sponsors will benefit from wider advertising options secured by the Bundeskartellamt in a previous proceeding. In addition, they will now also have more options than before when it comes to using social media. This is the result of the Bundeskartellamt’s monitoring of the advertising rules applicable to members of Team Germany and their sponsors at the 2024 Olympic Games.

Andreas Mundt, President of the Bundeskartellamt: “"Athletes are the key figures of the Olympic Games. However, they cannot benefit directly from the IOC’s high advertising revenue generated with official Olympic sponsors. This is why self-marketing through advertising is all the more important. At this year’s Olympic Games in Paris, members of Team Germany and their sponsors will be able to benefit from advertising rules that have already been relaxed as a result of our 2019 proceeding. As from this year there will be a further relaxation of the rules governing the use of social media, which is probably the most important means for athletes to stay in touch with their fans at home and directly share impressions of the highlights of their sporting careers."” [See more]

Press Release

2.3

18.03.2024

No objections to merger between Barmenia and Gothaer

Bonn, 18 March 2024: The Bundeskartellamt has today cleared under merger control plans to create a joint venture between Barmenia Versicherungen a.G. (Barmenia) and Gothaer Versicherungsbank VVaG (Gothaer).

Andreas Mundt, President of the Bundeskartellamt: "“The proposed concentration between Barmenia and Gothaer will be one of the largest mergers in the German insurance markets in recent years. However, we do not expect this concentration to seriously affect competition. The various insurance markets in Germany have a great number of competitors, some of which are significantly larger.”"

Barmenia and Gothaer are the parent companies of the insurance groups of the same name. Both groups offer their customers a broad range of insurance products and pursue life insurance, private health insurance, non-life insurance and, to a lesser extent, reinsurance activities. In geographical terms, the two insurance groups generate their total annual revenue (from premiums) of over seven billion euros mainly in Germany. [See more]

Press Release

2.4

13.03.2024

Bundeskartellamt imposes fine on account of vertical price-fixing in the sale of protective clothing

The Bundeskartellamt has imposed a fine of 783,900 euros on Pfanner Schutzbekleidung GmbH, Koblach, Austria, on account of vertical price-fixing. Pfanner Schutzbekleidung GmbH (in the following: Pfanner) and one of its affiliates, which has not been fined, sell high-quality and high-priced functional and protective clothing in Germany through resellers. Pfanner is accused of having restricted its partnering resellers in their pricing of trousers, jackets, tops, protective footwear, helmets (Protos Integral) and accessories. The proceeding was initiated after one of the resellers had disclosed these practices to the Bundeskartellamt and offered full cooperation on the matter.

Andreas Mundt, President of the Bundeskartellamt: “"Manufacturers are allowed to issue non-binding price recommendations, but it has to be possible for resellers to determine their prices independently and unrestricted by the manufacturers’ recommendations. Vertical price-fixing agreements such as the one at hand usually put consumers at a disadvantage and often lead to excessive consumer prices. The Bundeskartellamt vigorously prosecutes such practices, which have already been prohibited since the early 1970s".” [See more]

Press Release

2.5

12.03.2024

Novartis AG can acquire MorphoSys AG

The Bundeskartellamt has cleared the planned acquisition by Novartis AG (Switzerland) of all shares in MorphoSys AG, based in Planegg near Munich, in the first phase of merger control. MorphoSys is a global biotechnology company specialising, in particular, in the development of drugs for leukaemia (blood cancer). Novartis produces and develops drugs for use in nearly all major medical fields. In its oncology research Novartis also focuses on leukaemia.

Andreas Mundt, President of the Bundeskartellamt: “"In the case at hand one of the world’s largest pharmaceutical companies intends to acquire one of Germany’s largest biotech companies. We have looked at the merger very carefully to make sure it will not negatively affect competition with respect to the research and development of new drugs for a certain type of leukaemia. Having examined the merger, we have no serious competition concerns about the project. A large number of possible alternative active substances are in development, and we also expect generics to provide competition. The case also demonstrates, once again, the relevance of the transaction value threshold, which was incorporated into the German Competition Act (GWB) in 2017. Without this provision we would not have been able to examine this case, even despite its great economic significance".”

The transaction value threshold allows the Bundeskartellamt to examine under competition law mergers where companies or assets which (at the time of the merger) generate little or no turnover are acquired at a purchase price of more than 400 million euros. The parties have agreed that Novartis will acquire MorphoSys by way of a voluntary public takeover bid at an equity value of 2.7 billion euros or 68.00 euros per share.

In the case at hand the Bundeskartellamt’s examination focused on the research and development of active substances for the treatment of myelofibrosis. [See more]

Press Release

2.6

11.03.2024

Düsseldorf Higher Regional Court largely confirms enforceability of the Bundeskartellamt’s ruling on abusive practices against Deutsche Bahn

On 8 March 2024 the Düsseldorf Higher Regional Court decided to reject large parts of Deutsche Bahn AG’s (DB) request for summary proceedings against the Bundeskartellamt’s decision in its abuse proceedings against DB. On 26 June 2023 the Bundeskartellamt had ruled that DB was in violation of competition law due to abusing its market power in relation to mobility platforms. The authority had ordered DB to change certain practices and contractual clauses that it found to be restricting competition at the expense of rival mobility platforms (see press release of 28 June 2023).

Andreas Mundt, President of the Bundeskartellamt: “In this summary decision the Düsseldorf Higher Regional Court has confirmed the enforceability of large parts of our ruling against Deutsche Bahn. We therefore intend to continue to enforce our decision. The court’s decision is a boost for us in the main proceedings, which will continue before the Higher Regional Court”. [See more]

Press Release

2.7

05.03.2024

Landline phones: VTech can take over significant assets from Gigaset

The Bundeskartellamt has cleared the planned acquisition of significant assets of Bocholt-based Gigaset Communications GmbH (Gigaset) by Snom Solutions GmbH (Snom), which belongs to the VTech Group, within the one-month period in the first phase of merger control. Both Gigaset and VTech operate in the landline phone business.

Gigaset is under debtor-in-possession management within the framework of insolvency proceedings. Snom is a wholly-owned subsidiary of VTech Holdings Limited, Bermuda, (listed at the Hong Kong Stock Exchange).

Andreas Mundt, President of the Bundeskartellamt: “When it comes to landline phones for household use, Gigaset has very high market shares. Overall demand in this industry is declining. We carefully examined this merger, but ultimately we have no serious competition concerns about the project”. [See more]

Press Release

3. EU COM

3.1

26.03.2024

Commission opens investigation into possible anticompetitive conduct by Zoetis over novel pain medicine for dogs

The European Commission has opened a formal antitrust investigation to assess whether animal health company Zoetis may have breached EU competition rules by preventing the market launch of a competing novel biologic medicine used to treat chronic pain in dogs.

Zoetis is a global animal health company headquartered in the US. Zoetis' Librela is the first and only monoclonal antibody medicine approved in Europe to treat pain associated with osteoarthritis in dogs. The medicine is administered monthly and offers a novel pain relief option, particularly relevant for older dogs.

In parallel to developing Librela, Zoetis acquired another late-stage pipeline product for the same indication of pain relief, which was going to be commercialised in the European Economic Area (‘EEA') by a third party. The Commission is concerned that Zoetis may have engaged in exclusionary behaviour contrary to EU antitrust rules by terminating the development of this alternative pipeline product and refusing to transfer this pipeline medicine to the third party which in the EEA had exclusive commercialisation rights.  [See more]

Press release

3.2

25.03.2024

Commission sends Statement of Objections over proposed acquisition of a stake in ITA Airways by Lufthansa

The European Commission has informed Deutsche Lufthansa AG (‘Lufthansa') and the Italian Ministry of Economy and Finance (‘MEF') of its preliminary view that their proposed acquisition of joint control of ITA Airways (‘ITA') may restrict competition on certain routes in the market for passenger air transport services in and out of Italy. The Commission is concerned that customers may face increased prices or decreased quality of services after the transaction. 

Lufthansa and ITA operate an extensive network of routes from their respective hubs in Austria, Belgium, Germany, Switzerland and Italy. Lufthansa has joint ventures with United Airlines and Air Canada for transatlantic routes as well as with All Nippon Airways for routes to Japan. The joint venture partners coordinate on price, capacity, scheduling, and share revenues. [See more]

Press release

3.3

19.03.2024

Commission sends Statement of Objections to Kingspan for providing incorrect, incomplete and misleading information during merger investigation

The European Commission has sent a Statement of Objections to Kingspan alleging that the company provided incorrect, incomplete and misleading information during the 2021 Commission's investigation under the EU Merger Regulation (‘EUMR') of Kingspan's planned acquisition of Trimo. Kingspan ultimately abandoned the transaction.

In March 2021, Kingspan notified to the Commission its plan to acquire Trimo. Both companies are producers and distributors of mineral fibre sandwich panels. In April 2021, the Commission opened an in-depth investigation into the transaction. In March 2022, it issued a Statement of Objections outlining its concerns that the proposed transaction could negatively affect competition in certain building materials markets, leading to higher prices, reduced quality or less choice for customers. In April 2022, the parties abandoned the transaction. [See more]

Press release

4. EC / ECJ

4.1

21.03.2024

Advocate General’s Opinion in Joined Cases C-611/22 P | Illumina v Commission and C-625/22 P Grail v Commission and Illumina

AG Emiliou proposes to set aside the General Court judgment and annul Commission decisions on referral request

Advocate General Nicholas Emiliou proposes that the Court should set aside the General Court judgment and annul the Commission decisions accepting the referral and the requests to join it as well as the Commission’s information letter.

Advocate General Emiliou finds that the General Court erred in its interpretation of Article 22 of the Merger Regulation when it came to the conclusion that a ‘literal, historical, contextual and teleological’ interpretation of that provision supported the view that Member States may request the Commission to examine a concentration which does not have a Community dimension, even where they have no competence to review such a concentration under national law.

AG Emiliou concludes that the General Court erred in its interpretation and application of Article 22 of the Merger Regulation. Under a proper construction, that provision does not empower the Commission to adopt decisions such as those challenged, and therefore those decisions and the information letter should be annulled. [See more]

Press release

5. DMA / DSA

5.1

25.03.2024

Commission opens non-compliance investigations against Alphabet, Apple and Meta under the Digital Markets Act

Today, the Commission has opened non-compliance investigations under the Digital Markets Act (DMA) into Alphabet's rules on steering in Google Play and self-preferencing on Google Search, Apple's rules on steering in the App Store and the choice screen for Safari and Meta's “pay or consent model”.

The Commission suspects that the measures put in place by these gatekeepers fall short of effective compliance of their obligations under the DMA.

In addition, the Commission has launched investigatory steps relating to Apple's new fee structure for alternative app stores and Amazon's ranking practices on its marketplace. Finally, the Commission has ordered gatekeepers to retain certain documents to monitor the effective implementation and compliance with their obligations. [See more]

Press Release

5.2

07.03.2024

Designated gatekeepers must now comply with all obligations under the Digital Markets Act

As of today, Apple, Alphabet, Meta, Amazon, Microsoft and ByteDance, the six gatekeepers designated by the Commission in September 2023, have to fully comply with all obligations in the Digital Markets Act (DMA).

Gatekeepers started testing measures to comply with the DMA ahead of the deadline, triggering feedback from third parties. As of today, gatekeepers are required to prove their effective compliance with the DMA and outline the measures undertaken in compliance reports. The public version of these reports is accessible on the Commission's dedicated DMA webpage. Today, the designated gatekeepers also have to submit to the Commission an independently audited description of any techniques used for profiling consumers, along with a non-confidential version of the report.

The Commission will now carefully analyse the compliance reports and assess whether the implemented measures are effective in achieving the objectives of the relevant obligations under the DMA. The Commission's assessment will also be based on the input of interested stakeholders, including in the context of the compliance workshops, where gatekeepers are invited to present their solutions.

The Commission will not hesitate to take formal enforcement action, using the entire toolbox at its disposal to fully enforce the DMA.

Should the Commission suspect an infringement of the DMA, it can open proceedings to investigate the potential breach. In case of an infringement, the Commission can impose fines of up to 10% of the company's total worldwide turnover, which can go up to 20% in case of repeated infringement. Moreover, in case of systematic infringements, the Commission is also empowered to adopt additional remedies such as obliging a gatekeeper to sell a business or parts of it or banning the gatekeeper from acquisitions of additional services related to the systemic non-compliance. [See more]

Press release

6. Sustainability

6.1

15.03.2024

Corporate Sustainability Due Diligence Directive gets the Green from the Council

On March 15, 2024, after weeks of uncertainty, the Council adopted the CSDDD with significant changes to its application scope. It now applies to entities with a net turnover exceeding €450 million within the EU and an average of more than 1000 employees. The Council-approved directive text received endorsement from the Legal Affairs Committee of the European Parliament (JURI) on March 19, 2024. The European Parliament is scheduled to vote on this directive text during its last plenary session before the European elections on April 24, 2024. Subsequently, the Council must formally adopt the final text, which will be published in the Official Journal of the European Union. The directive will take effect 20 days following its publication. Member states will have two years to incorporate the directive into national law. Depending on their size, companies will have a compliance period of 3-5 years to fulfill the obligations set out by the CS3D.

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