Newsbulletin May 2023 - CERHA HEMPEL Rechtsanwälte GmbH

Authority		Date	Title	Abstract	Type of publication

AFCA (BWB)
	1.1	30.05.2023	Press release merger BWB/Z-6244: ORF / RIG Radio Innovations GmbH / Radioplayer Österreich GmbH	“Merger between ORF and RIG Radio Innovations GmbH cleared subject to conditions On 13 April 2023 the Austrian Federal Competition Authority (AFCA) was notified of a merger that involved the Austrian Broadcasting Corporation (“ORF”) acquiring shares in Radioplayer Österreich GmbH (“RPÖ GmbH”). The AFCA closely cooperated with the Federal Cartel Prosecutor and Austrian Communications Authority (KommAustria) in examining the merger and possible conditions. Following an in-depth review and a voluntary extension of the examination period (six instead of four weeks) by the applicant, the merger has now been cleared subject to conditions only." [See more]	Press release
	1.2	04.05.2023	Construction cartel update: Gebrüder Haider fine set at EUR 3.51 million	"In October 2022, the AFCA applied to the Cartel Court for an appropriate fine to be imposed on the companies Gebrüder Haider Bauunternehmung Gesellschaft m.b.H., Gebrüder Haider & Söhne GmbH, Gebrüder Haider & Co Hoch- und Tiefbau GmbH, Haider - Steininger GmbH and Haider & Co Hoch- und Tiefbau GmbH (hereinafter “Gebrüder Haider”). In April 2023, Gebrüder Haider acknowledged a fine of EUR 3.51 million, not contesting the decision. On 4 May 2023, the AFCA filed a specific application to fine three Gebrüder Haider companies that operate in the construction sector and submitted Gebrüder Haider’s acknowledgement to the Cartel Court." [See more]	Press release
GFCO (BKartA)
	2.1	31.05.2023	Inquiry into non-search online advertising: significant market position of Alphabet/Google, insufficient transparency in programmatic advertising	"Andreas Mundt, President of the Bundeskartellamt: “For numerous online services providers in the internet economy, non-search online advertising is a key source of funding. Our sector inquiry plays an important part in clarifying the facts and providing information on the highly complex system of automated trading in online advertising space and its significance for competition.”” [See more]	Press release
	2.2	30.05.2023	Abuse control relating to energy price relief measures: proceedings to examine district heating sector initiated	"The Bundeskartellamt has initiated further examination proceedings based on the laws on energy price relief. The proceedings now initiated focus on companies that have filed applications for advance payments with regard to the supply of heat under the German laws on energy price relief. The laws’ prohibitions of abusive practices aim to prevent companies from charging customers prices which result in the companies obtaining unjustified relief payments from the state. The Bundeskartellamt is already conducting examination proceedings against gas suppliers (see Press release 15 May 2023) and is planning to initiate further proceedings in the electricity sector. Andreas Mundt, President of the Bundeskartellamt: “In the second round of proceedings we are examining a number of heat suppliers that have applied for advance payments under the energy price relief laws. As in the gas sector, the proceedings initiated in the heat sector cover about 15 per cent of the relief payments so far claimed for the first quarter of 2023. This affects well over a hundred heat networks of all sizes in various regions of Germany.” [See more]	Press release
	2.3	25.05.2023	More competition elements to be included in animal welfare initiative “Initiative Tierwohl” – Bundeskartellamt achieves abolishment of compulsory premium	"Due to competition concerns raised by the Bundeskartellamt, the animal welfare initiative “Initiative Tierwohl” has decided to abolish, as from 2024, the current compulsory premium payable by buyers to participating farmers (“animal welfare surcharge”). The Bundeskartellamt appreciates the initiative’s plan to introduce instead a non-binding recommendation on how to fund the additional costs incurred through observing animal welfare criteria. Andreas Mundt, President of the Bundeskartellamt: “‘Initiative Tierwohl’ has established itself in the market; the revised financing model will reflect this fact. A standard premium for animal welfare doesn’t appear indispensable for implementing the initiative and observing animal welfare criteria. The abolishment of the standard premium and the introduction of a recommendation-based system show that it is possible to find a balanced solution for including more competition elements in the funding of additional costs at the interface between sustainability and competition. We welcome this step.“[See more]	Press release
	2.4.	17.05.2023	Messenger and video services: Bundeskartellamt on data protection, transparency and interoperability	"Today the Bundeskartellamt has published the final report on its sector inquiry into messenger and video services. Andreas Mundt, President of the Bundeskartellamt: “Messenger and video services have become an everyday means of communication for most of us. Users are often not aware that not all services equally ensure the protection of their personal data. The legal regulations for and the technical basis of data security are complex, intricate and difficult to understand. Clear provisions, information and more transparency could lead to the issue of data protection becoming more important to users when deciding for or against the use of one messenger service or another. As a result, providers would in turn have a greater incentive to ensure a high level of data protection.” [See more]	Press release
	2.5.	15.05.2023	Abuse control relating to energy price relief measures: First examination proceedings initiated – further proceedings will follow	"The Bundeskartellamt has initiated its first examination proceedings based on the laws on energy price relief. The proceedings focus on companies that have filed applications for reimbursement with regard to the supply of gas under the German laws on energy price relief. The laws’ prohibitions of abusive practices aim to prevent companies from charging end consumers prices which result in the companies obtaining unjustified relief payments from the state. Early this year a new division at the Bundeskartellamt took over the control of abusive practices relating to the price relief measures. Andreas Mundt, President of the Bundeskartellamt: “With its energy price relief measures the government is providing considerable funds to ease the financial burden felt by consumers and the industry. Our task is to protect the state from exploitation. Our first examination proceedings affect a double-digit number of gas suppliers that have filed applications under the price relief laws for what could be excessive reimbursement payments. We have reason to believe that the prices charged to end consumers could be objectively unjustified and we are now in the process of shedding some light on this issue. Further proceedings will be initiated to examine cases relating to the district heating and electricity sectors. Although there is no general suspicion, we will from now on conduct regular and systematic screenings of all data provided by companies in their applications for reimbursement.” [See more]	Press release
EU COM
	4.1	25.05.2023	Mergers: Commission approves the merger between Credit Suisse and UBS	"The European Commission has approved unconditionally, under the EU Merger Regulation, the merger between Credit Suisse and UBS. The Commission concluded that the transaction would not raise competition concerns in the European Economic Area (‘EEA'). *UBS* and Credit Suisse are both global multinational investment banks and financial services companies. In the EEA, the companies' activities overlap in wealth and asset management as well as in investment banking."[See more]	Press release
	4.2	17.05.2023	Mergers: Commission clears acquisition of OMV Slovenija by MOL, subject to conditions	"The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of OMV Slovenija by MOL. The approval is conditional on the divesture of 39 fuel stations in Slovenia to the Shell Group."[See more]	Press release
	4.3	17.05.2023	Mergers: Commission sends Korean Air Statement of Objections over proposed acquisition of Asiana	"The European Commission has informed Korean Air of its preliminary view that its proposed acquisition of Asiana may restrict competition in the markets for passenger and cargo air transport services between the European Economic Area (‘EEA') and South Korea. *Korean Air* and Asiana are respectively the first and second largest airlines in South Korea. They operate a network of domestic and short-haul routes in Asia as well as long-haul routes between South Korea and the rest of the world." [See more]	Press release
	4.4	15.05.2023	Mergers: Commission clears acquisition of Activision Blizzard by Microsoft, subject to conditions	"The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Activision Blizzard (‘Activision') by Microsoft. The approval is conditional on full compliance with the commitments offered by Microsoft. The commitments fully address the competition concerns identified by the Commission and represent a significant improvement for cloud gaming as compared to the current situation." [See more]	Press release
	4.5	04.05.2023	Mergers: Commission clears Hydro´s acquisition of Alumetal	"The European Commission has approved unconditionally, under the EU Merger Regulation, the proposed acquisition of Alumetal by Norsk Hydro. The Commission concluded that the merger would not raise competition concerns in the European Economic Area (‘EEA'), notably for green aluminium foundry alloys."[See more]	Press release
EC / ECJ
	5.1.	24.05.2023	Judgment of the General Court in Case T-451/20 / Meta Platforms Ireland v Commission	"The General Court finds that Meta Platforms Ireland has not successfully demonstrated that the request to provide documents to be identified by search terms went beyond what was necessary or that establishing a virtual data room failed to ensure that sensitive personal data was sufficiently protected" [See more]	Press release
	5.2.	17.05.2023	Judgment of the General Court in Case T-321/20 / enercity v Commission	"The General Court provides clarification in that context of the novel question of the burden of proof so far as concerns the sending by the Commission of the questionnaire to conduct its market test". [See more]	Press release
	5.3.	17.05.2023	Judgment of the General Court in Case T-312/20 / EHV v Commission	"The action brought by the German electricity produced EVH against the approval by the Commission of the acquisition of E.ON assets by RWE is dismissed. The General Court points out in particular that an asset swap between independent undertakings does not constitute a single concentration." [See more]	Press release
DMA / DSA
	6.1.	02.05.2023	Questions and Answers: Digital Markets Act: Ensuring fair and open digital markets	*"What is the Digital Markets Act?* The Digital Markets Act introduces rules for platforms that act as “gatekeepers” in the digital sector. These are platforms that have a significant impact on the internal market, serve as an important gateway for business users to reach their end users, and which enjoy, or will foreseeably enjoy, an entrenched and durable position. This can grant them the power to act as private rule-makers and to function as bottlenecks between businesses and end users." [See more]	Press release