Newsbulletin November 2023

1. AFCA (BWB)

1.1

16.11.2023

Illegal merger: AFCA filed application with Cartel Court to impose a fine of EUR 28,000 on Granit

On 12 October 2023, the Austrian Federal Competition Authority (AFCA) filed an application to fine Granit Holding GmbH (“Granit”) on the grounds of an illegal merger subject to notification obligations. The company has acknowledged the infringement.

The merger was aimed at acquiring 100% of the target company’s operations, Stvarnik Bau-Gesellschaft m.b.H. (“Stvarnik”). The acquiring company, Granit, is mainly engaged in the fields of building construction, industrial construction and civil engineering as a general contractor and property developer. The target company focused primarily on planning small residential buildings, as well as on agricultural and industrial buildings. [See more]

Press Release

1.2

15.11.2023

AFCA concludes proceedings in wood pellets market with compliance obligations

In October 2022, the Austrian Federal Competition Authority (AFCA) carried out dawn raids in the market for wood pellets owing to suspected price fixing, customer sharing and collusive arrangements related to the sale of pellets. The AFCA investigated several companies and one interest group in the provinces of Vienna, Carinthia and Tyrol.

The AFCA has discontinued its proceedings against the companies and the ProPellets association as it did not find evidence of anti-competitive conduct that would stand up in court. It found that some of the suspected issues such as stockpiling had taken place in individual cases, as also supported by numerous complaints and whistleblower reports. However, no evidence was found of any related (price) coordination, either by the association or among the companies. Likewise, any illegal exchange of sensitive information could not be substantiated. [See more]

Press release

1.3

10.11.2023

Cartel Court imposes fine of EUR 85,000 on Oras Invest for illegal merger

On 11 October 2023, following a request submitted by the Austrian Federal Competition Authority (AFCA), the Cartel Court issued a final decision, imposing a fine of EUR 85,000 on Oras Invest Oy (“Oras Invest”) on the grounds of an illegal merger.

Oras Invest is a Finnish holding company specialised in holdings in industrial companies.

The target company Uponor is an industrial company headquartered in Finland and engaged in the business fields of water, heating and cooling, as well as offering infrastructure solutions. Geographically speaking, the target company is mainly active in Europe and North America. [See more]

Press release

1.4

10.11.2023

Unfair trading practices: AFCA files applications with Cartel Court for fines on MPREIS in 16 cases

On 10 November 2023, the Austrian Federal Competition Authority (AFCA) filed applications with the Cartel Court for the imposition of appropriate fines on MPREIS Warenvertriebs GmbH (“MPREIS”) in relation to 16 cases in which the Fair Competitive Conditions Act (FWBG) was breached.

The 16 applications related to unfair trading practices in connection with the sale of agricultural and food products.

The AFCA had received information according to which MPREIS had submitted pro forma invoices to suppliers of agricultural and food products showing varying flat rate amounts and with no correlation to the products actually purchased. MPREIS had demanded these payments to support a transformation project. The AFCA has now filed applications with the Cartel Court against MPREIS due to the latter having breached the FWBG in relation to 16 suppliers. [See more]

Press Release

1.5

06.11.2023

Legal Certainty and Transparency - updated Position Paper on Settlements

On the 6th of November 2023, the Austrian Federal Competition Authority (AFCA) has introduced an updated version of its position paper on settlements, which it had published for the first time in 2014. The AFCA has complemented its paper including additional important and topical issues. The settlement discount scheme has also been revised (settlement discount, which used to reach up to 20%, is now cut to a maximum of 15%).

Additional guidance focuses on the treatment and protection of “privileged documents”, “hybrid procedures” (procedures against several involved companies where at least one of them is aiming to settle while the others favour unsettled disputes before the Cartel Court), as well as disclosure requirements during the settlement procedure. [See more]

Press Release

Position Paper on Settlements (German Version)

1.6

03.11.2023

AFCA presents final report on sector inquiry into food industry

The Austrian Federal Competition Authority (AFCA) launched a comprehensive sector inquiry into the food industry in October 2022. One year later the results are now available.

The inquiry was launched amidst significant price increases for consumers, global and European developments in the supply chain and rising inflation.

“Our report provides a complete overview of competition in the food market in Austria, transparently describing the current situation in the market. It contains a substantial amount of facts and figures, which can be used to develop measures to strengthen competition and consumer protection,” says Natalie Harsdorf-Borsch, head of the AFCA. [See more]

Press Release

Sector inquiry into food industry (German Version)

Sector inquiry’s executive summary (German Version)

Sector inquiry’s consumer survey (German Version)

2. GFCO (BKartA)

2.1

30.11.2023

Takeover in waste management sector (Veolia/Friedrich Hofmann) cleared subject to conditions

"The Bundeskartellamt has today cleared the takeover by Veolia Umweltservice GmbH, Hamburg, of the operating subsidiaries of Friedrich Hofmann GmbH, Büchenbach, subject to a condition precedent. Before the merger can be implemented, one of the parties’ disposal sites in Nuremberg has to be sold to an independent competitor. The Bundeskartellamt must approve that company prior to it acquiring the site.

Andreas Mundt, President of the Bundeskartellamt: "Without this condition, we would have had to prohibit the takeover. Veolia is taking over a medium-sized competitor that is by far the largest provider of such services in the Bavarian region of Middle Franconia. In the greater area of Nuremberg, Fürth and Erlangen the takeover will significantly impede competition in the near-household collection of lightweight packaging and glass packaging on behalf of the operators of the dual system for packaging recycling and in the near-household collection of waste paper on behalf of public waste management authorities. However, selling one centrally located site will allow a new competitor to enter the market. This will offset the negative effects on competition caused by the concentration.” [See more]

Press release

2.2

16.11.2023

Bundeskartellamt examines price adjustment clauses in district heating

The Bundeskartellamt has initiated proceedings against a total of six municipal utilities and district heating suppliers on the suspicion of abusively excessive price increases in the period from January 2021 to September 2023. In particular, the authority is examining the concrete implementation of so-called price adjustment clauses. District heating suppliers adjust their prices based on such clauses in order to account for both the general market development and the costs they incur for the energy actually used in their own heat generation.

Andreas Mundt, President of the Bundeskartellamt: “District heating suppliers have a monopoly position in their network area. It is not possible for consumers to switch supplier. This is also why district heating suppliers are subject to the prohibition of abusive practices under competition law. In the proceedings, we are examining in particular whether the price adjustment clauses used in the specific cases violated legal requirements, resulting in increased consumer prices. District heating prices must be set based on the development of the costs actually incurred by suppliers as well as the general price development in the heat supply sector. For example, there are questions when a company adjusted its district heating prices based on the gas price development although in fact it also used other, cheaper alternatives for heat generation.” [See more]

Press release

2.3

15.11.2023

Cooperation between Microsoft and OpenAI currently not subject to merger control

Microsoft’s involvement in and its cooperation with OpenAI is not subject to merger control in Germany. OpenAI is the company behind the AI program ChatGPT.

Andreas Mundt, President of the Bundeskartellamt: "We thoroughly examined the possibility of the companies having to notify Microsoft’s involvement in OpenAI. However, we have concluded that the previous investments and the cooperation between the two companies are not subject to merger control. Artificial intelligence is a key technology when it comes to competition in the further development of the digital economy. On the one hand, AI provides opportunities to stimulate competition, but on the other hand, there is the risk of the large internet companies further consolidating their positions of power. We need to keep a very close eye on how the market develops and, in particular, on the extent to which the major players get involved in young, up-and-coming companies in this sector. If Microsoft were to increase its influence on OpenAI in the future, we would have to re-examine whether the companies are subject to notification under merger control." [See more]

Press release

2.4.

14.11.2023

The Bundeskartellamt has today initiated abuse proceedings against Coca-Cola Europacific Partners Deutschland GmbH (Coca-Cola). Coca-Cola is responsible for bottling and distributing all the beverage brands owned by The Coca-Cola Company in Germany.

Andreas Mundt, President of the Bundeskartellamt: "There are indications of Coca-Cola possibly restricting the opportunities of other companies to compete based on how it structures its terms offered to German food retailers, in particular its rebate structure. We will now take a closer look at this.” [See more]

Press release

2.5.

09.11.2023

Two mergers of regional newspapers cleared Two mergers of regional newspapers cleared

The Bundeskartellamt has cleared two mergers of regional newspapers in the first phase of merger control. Now the Ippen Group can take over Verlagsgesellschaft Vogelsberg GmbH & Co. KG, and Neue Pressegesellschaft mbH & Co. KG can take over Schwäbisches Tagblatt GmbH. Although the mergers cause competition problems, they could not be prohibited under merger control.

Andreas Mundt, President of the Bundeskartellamt: "Both the takeover of Verlagsgesellschaft Vogelsberg by the Ippen Group and the takeover of Schwäbisches Tagblatt by Neue Pressegesellschaft are very problematic from a competition perspective. In both cases we are concerned that market dominance may occur in the respective circulation areas. However, we ultimately had to clear the mergers because the markets affected are so-called “minor markets” [Bagatellmärkte] with low turnovers. For mergers to be prohibited in the press sector, the total market volume must be at least 5 million euros. In recent years we have seen more and more cases of acquisitions of smaller newspapers that were not subject to notification or could not be prohibited.” [See more]

Press release

2.6

07.11.2023

Bundeskartellamt clears acquisition of shares in new TSMC semiconductor factory in Dresden by Bosch, Infineon and NXP

The Bundeskartellamt has cleared plans by Bosch, Infineon and NXP to each acquire 10 per cent of the shares in European Semiconductor Manufacturing Company (ESMC), a company established by Taiwan Semiconductor Manufacturing Company (TSMC). ESMC intends to build and operate another large semiconductor factory in Dresden, in which the three European technology companies are also to be involved.

Andreas Mundt, President of the Bundeskartellamt: "Recent geopolitical upheavals have underlined the importance of secure access to semiconductors, especially also for the German industry. Both the European Union and Germany are therefore very committed to bringing more semiconductor manufacturers back to Europe and Germany. It is the Bundeskartellamt’s task to ensure that the requirements under competition law are complied with in this process. According to our examination, the fact that Bosch, Infineon and NXP will also have a share in the new TSMC semiconductor factory in Dresden is fully in line with the requirements under merger control. Our proceeding does not include an assessment under state aid law of the envisaged public funding for the company to settle in Dresden.” [See more]

Press Release

2.7

06.11.2023

Provision of medical aids: Anti-competitive price coordination stopped following Bundeskartellamt proceeding

The anti-competitive coordination of prices in the supply of medical aids by the Working Group of Associations of Suppliers of Medical Aids (“Arbeitsgemeinschaft von Hilfsmittelverbänden”, ARGE) has been terminated. This is the result of a proceeding the Bundeskartellamt conducted on account of coordinated price increases to the detriment of the statutory health insurance companies against the ARGE members, that is against the following associations of suppliers of medical aids: Sanitätshaus Aktuell AG, EGROH, rehaVital, Reha-Service-Ring, Cura-San and Bundesinnungsverband Orthopädietechnik.

Andreas Mundt, President of the Bundeskartellamt: "Suppliers of medical aids are allowed to cooperate. However, the purpose of ARGE was to more or less eliminate price competition at the expense of health insurance companies. With our proceeding we quickly put a stop to this practice. This sends a clear signal to the medical aid sector, which has already been effective and will also be important in the future: Negotiations conducted by working groups or associations on the supply and demand side are required for an efficient supply and are provided for by law. If, however, price competition is de facto eliminated by coordinated conduct, in this case even at the highest level of associations, a red line is crossed.” [See more]

Press Release

3. EU COM

3.1

30.11.2023

Commission sends Statement of Objections to six companies and one trade association in automotive starter battery cartel case

The European Commission has informed automotive starter batteries manufacturers Banner, Clarios (former JC Autobatterie), Exide, FET (and its predecessor Elettra), and Rombat as well as trade association Eurobat and its service provider Kellen of its preliminary view that they have breached EU antitrust rules by colluding to increase the prices of automotive starter batteries sold to car producers in the European Economic Area (‘EEA').

Automotive starter batteries provide an electric current to the starting motor, which starts the engine in cars powered by traditional combustion engines. They also supply power to the electrical equipment of cars.

The Commission has concerns that between 2004 until 2017 the five starter batteries manufacturers created, published and agreed to use new indices in their price negotiations with car producers (the so-called ‘Eurobat Premium System'). The aim of this alleged conduct was to fix an important element of the final battery price. [See more]

Press release

3.2

27.11.2023

Commission sends Amazon Statement of Objections over proposed acquisition of iRobot

The European Commission has informed Amazon of its preliminary view that its proposed acquisition of iRobot may restrict competition in the market for robot vacuum cleaners (‘RVCs').

Amazon provides an online marketplace (the Amazon Stores), which allows retailers to advertise and sell products (including RVCs) to customers. Amazon is active as a retailer of various products (including RVCs) on its online marketplace. iRobot manufactures RVCs and sells them also through Amazon's online marketplace. [See more]

Press release

3.3

22.11.2023

Commission fines Rabobank €26.6 million over Euro-denominated bonds trading cartel

The European Commission has fined Rabobank €26.6 million for participating in a cartel concerning the trading of certain Euro-denominated bonds, together with Deutsche Bank. Deutsche Bank was not fined as it revealed the cartel to the Commission under the leniency programme.

The products concerned by the cartel are Euro-denominated SSA bonds (Supra-Sovereign, Foreign Sovereign, Sub-Sovereign/Agency bonds) and Government Guaranteed bonds traded in the European Economic Area (‘EEA').

The Commission investigation revealed that between 2006 and 2016 the two banks, through some of their traders, exchanged commercially sensitive information and coordinated their trading and pricing strategies. [See more]

Press release

3.4

21.11.2023

Antitrust: Commission carries out unannounced inspections in the online food delivery sector

The European Commission is carrying out unannounced inspections at the premises of companies active in the online ordering and delivery of food, groceries and other consumer goods in two Member States.

The Commission has concerns that the companies concerned may have violated EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union). [See more]

Press release

3.5

17.11. 2023

Commission sends Adobe Statement of Objections over proposed acquisition of Figma

The European Commission has informed Adobe of its preliminary view that its proposed acquisition of Figma may reduce competition in the global markets for the supply of interactive product design software and of other creative design software.

Adobe is a global software company offering, among others, creative design software tools (e.g., Illustrator and Photoshop) and an interactive product design tool (Adobe XD). Figma is a provider of a web-based collaborative tool for interactive product design (Figma Design) as well as a whiteboarding tool.

Interactive product design software tools are used mainly to design websites, mobile applications, and other digital products. With creative design software, users can create or edit digital assets, such as photos (so-called ‘raster images'), graphic illustrations (so-called ‘vector images') and videos. [See more]

Press release

4. EC / ECJ

4.1

09.11.2023

Altice Group Lux v Commission

Case C-746/21P

ECJ confirmed that it was justified to impose two separate fines for infringements of Article 4(1) (notification obligation) and Article 7(1) (standstill obligation) of the EU Merger Regulation (“EUMR”) as they pursue different objectives, and are different in duration. (NE BIS IN IDEM - prohibition of double jeopardy)

Furthermore ECJ clarified standards for obtaining “control” over the Target by the Acquirer. (Pre-closing covenants, Negative Control and Exchange of Information) [See more]