Newsbulletin October 2023

1. AFCA (BWB)

1.1

18.10.2023

AFCA, KommAustria and RTR enter into cooperation agreement in relation to digital markets

Digitalised markets pose ever new challenges, making a precise understanding of the underlying market structures and developments increasingly important. With these challenges in mind, the Austrian Federal Competition Authority (AFCA), the Austrian Communications Authority (KommAustria) and the Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR) with its Telecommunications and Postal Division (RTR.Telekom.Post) and Media Division (RTR Medien) have decided to intensify their working relationships and signed mutual agreements covering their respective remits. The agreements are aimed at strengthening regulatory tools by using available synergies, as well as gaining in-depth knowledge of these marketplaces.This will help tackle the challenges posed by the digital age and also help answer complex questions more efficiently.[See more]

Press release

1.2

05.10.2023

AFCA has taken action against the charging of incorrect VAT amounts in energy supply contracts in relation to the energy price cap

AFCA has been made aware of the company Max Energy Austria Handels GmbH (Max Energy; is a supplier of electricity and gas based in Vienna) through a complaint lodged via its whistleblowing system.On its website, the company based its calculation of the value added tax due on the first 2,900 kWh of energy, to which the Austrian Government’s energy price subsidy applies, on the consumer price less the energy subsidy (10 cents/kWH). What it should have done was calculate the VAT based on the market price for electricity. Following an initial investigation into the facts of the case, the AFCA approached the company asking for a statement on the alleged misleading commercial practice according to the Unfair Competition Act (UWG). False information or any other deception of market participants in relation to the price or the manner in which the price of a product is calculated can constitute a misleading commercial practice.[See more]

Press release

1.3

02.10.2023

Construction cartel: Cartel Court imposes a fine of EUR 27.15 million on Swietelsky at AFCA’s request

The Cartel Court issued a decision on 27 March 2023, imposing a fine of EUR 27.15 million, finding Swietelsky has breached the ban on cartels in the form of a single and continuous infringement and on the company. On 27 October 2022, AFCA has filed an application with the Cartel Court to have a reduced fine of EUR 27.15 million imposed on Swietelsky AG as well as its subsidiaries C. Peters Baugesellschaft m.b.H. and Kontinentale Baugesellschaft m.b.H. (“Swietelsky”). The decision is final. The company was found to have committed a single and continuous infringement of the ban on cartels during the period from at least July 2002 to October 2017, with the 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 many areas of Austria. Following initial investigations, Swietelsky promptly approached the AFCA back in the summer of 2017, and has since cooperated continuously and fully under the leniency programme. Swietelsky has also fully acknowledged the infringement by accepting the AFCA’s statement of facts as well as the amount of the fine and by not disputing the AFCA’s legal assessment of the case [See more]

Press release

2. GFCO (BKartA)

2.1

11.10.2023

SAP can take over LeanIX

The Bundeskartellamt has cleared the planned acquisition of LeanIX GmbH (LeanIX), Bonn, by SAP SE (SAP), Walldorf, in the first phase of merger control. The authority’s investigations had shown that the merger was not expected to significantly impede effective competition.

Andreas Mundt, President of the Bundeskartellamt: “"SAP has so far not offered its own software solutions in the area of Enterprise Architecture Management software and will expand its product portfolio accordingly as a result of the planned acquisition. We have cleared the takeover after carefully examining SAP’s strong position in the German market. Our examination focused on the question whether the new product bundle would allow SAP to impede competition. However, we did not find sufficient indications suggesting that this would be the case."” [See more]

Press release

2.2

05.10.2023

GFCA gives users of Google services better control over their data

Alphabet Inc., Google's parent company, gives users better choice as to how Google processes their data according to Commitments undertaken by Google. The Commitments are the result of a proceeding conducted by the GFCA based on the new instrument under competition law, which allows the GFCA to intervene when competition is threatened by large digital companies (Section 19a of the German Competition Act, GWB). The new provision was introduced in 2021. The proceeding is a testament to the close cooperation between the GFCA and the European Commission on the way to achieving more competition and fair markets in the digital sector.

Andreas Mundt, President of the Bundeskartellamt: “"Data are key for many business models used by large digital companies. The market power of large digital companies is based on the collection, processing and combination of data. Google’s competitors do not have these data and are thus faced with serious competitive disadvantages. In the future users of Google services will have a much better choice as to what happens to their data, how Google can use them and whether their data may be used across services. This not only protects the users’ right to determine the use of their data, but also curbs Google’s data-driven market power. Large digital companies offer a wide range of different digital services. Without the users’ free and informed consent the data from Google’s services and third-party services can no longer be cross-used in separate services offered by Google or even be combined. We have made sure that Google will provide a separate choice option in the future."”[See more]

Press release

3. EU COM

3.1

30.10.2023

Mergers: Commission approves Hitachi Rail's acquisition of Thales' ground transportation business, subject to conditions

The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Thales' ground transportation business ('GTS') by Hitachi Rail. The approval is conditional on full compliance with commitments offered by Hitachi Rail.

Hitachi Rail and Thales GTS are leading suppliers of rail mainline signalling services in the European Economic Area ('EEA'). Both supply interlockings and automated train protection wayside systems (overlay and resignalling). Hitachi Rail also manufactures and supplies rolling stock for mainline and urban trains.[See more]

Press release

3.2

19.10.2023

Cartel: Commission fines Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea and Transo-Pharm €13,4 million in antitrust cartel settlement

The European Commission has fined Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea and Transo-Pharm a total of €13,4 million for participating in a cartel concerning an important pharmaceutical ingredient. C2 PHARMA was not fined as it revealed the cartel to the Commission under the leniency programme. All six companies admitted their involvement in the cartel and agreed to settle the case. [See more]

Press release

3.3

19.10.2023

Mergers: Commission approves acquisition of Seagen by Pfizer

The European Commission has unconditionally approved the proposed acquisition of Seagen by Pfizer, under the EU Merger Regulation. The Commission concluded that the transaction would not raise competition concerns in the European Economic Area (‘EEA').

Seagen and Pfizer are pharmaceutical companies. Seagen specialises in oncology therapies, primarily in antibody drug conjugates (‘ADCs'). Pfizer's oncology portfolio largely consists of hormone therapies, immunotherapies, and targeted therapies.

In the EEA, the companies' marketed and pipeline products overlap in the treatment of several cancer types such as breast, bladder, colorectal, cervical and lung cancer, as well as in lymphoma and leukaemia. By acquiring Seagen's ADCs technology, Pfizer wishes to diversify its portfolio and accelerate the development and commercialisation of Seagen's ADCs drugs. [See more]

Press Release

3.4

17.10.2023

Down Raid: Commission carries out unannounced antitrust inspections in the construction chemicals sector

The European Commission is carrying out unannounced antitrust inspections at the premises of companies active in the construction chemicals sector in several Member States.

The Commission has concerns that the inspected companies 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).

The construction chemicals concerned by the inspection are chemical additives for cement and chemical admixtures for concrete and mortar. These are ingredients that are added to cement, concrete and mortar to modify and improve their properties and provide them with specific qualities. [See more]

Press Release

3.5

12.10.2023

Merger: Commission orders Illumina to unwind its completed acquisition of GRAIL

Today, the European Commission has adopted, under the EU Merger Regulation (‘EUMR'), restorative measures requiring Illumina to unwind its completed acquisition of GRAIL, following the Commission's decision to prohibit the transaction.

The Commission ordered the following measures: (i) divestment measures requiring Illumina to unwind the transaction with GRAIL; and (ii) transitional measures that Illumina and GRAIL need to comply with until Illumina has dissolved the transaction.

On 6 September 2022, the Commission prohibited the acquisition of GRAIL by Illumina over concerns that the merger would have stifled innovation and reduced choice in the emerging market for blood-based early cancer detection tests. Illumina and GRAIL unlawfully completed the merger during the Commission's in-depth investigation, in breach of EU merger control rules. In July 2023, the Commission fined both companies for implementing their proposed merger before approval by the Commission. [See more]

Press Release

3.6

10.10.2023

Question and Answers: Consortia Block Exemption Regulation; Commission decides not to extend antitrust block exemption for liner shipping consortia

Liner shipping services comprise the provision of regular, scheduled non-bulk maritime cargo transport (the vast majority in containers) on a specific route. They require significant levels of investment and therefore are regularly provided by several shipping companies cooperating in "consortia". 

Consortia represent agreements between liner shipping companies ("carriers") on joint operation of services, which generally lead to economies of scale and better utilisation of the space of the vessels. The CBER, adopted in 2009, exempts consortia from the prohibition of Article 101(1) of the Treaty on the Functioning of the European Union (‘TFEU'), provided certain conditions are met. Those conditions are: (i) consortia may not contain hardcore restrictions (price fixing, capacity or sales limitations – except capacity adjustments in response to fluctuations in supply and demand –, allocation of markets or customers); (ii) the market shares of consortia may not exceed 30%; and (iii) consortia must give members the right to withdraw with a maximum period of notice of 6 months (12 months in case of highly integrated consortia). [See more]

Press Release

4. EC / ECJ

4.1.

25.10.2023

Judgment of the General Court in Case T-136/19 | Bulgarian Energy Holding and Others v Commission

"According to the General Court, the Romanian Pipeline 1 was an essential facility for the transportation of Russian gas to Bulgaria due to the lack of any alternative. Even though Bulgargaz was not the owner of that pipeline, Bulgargaz had exclusive use of it, which took the form of a situation of control and, consequently, of Bulgargaz having a dominant position on the market in question.

The General Court nevertheless found that the Commission had not demonstrated that Bulgargaz's conduct regarding access to the Romanian Pipeline 1 was the cause of the difficulties which third parties encountered when requesting access to that pipeline for the transportation of gas from Russia to Bulgaria. Thus, any irregularity that might, in theory, have been committed by Bulgartransgaz in relation to the gas transmission network and the Chiren storage facility could not constitute an infringement of EU competition rules because no company could have entered the Bulgarian gas market without access to the Romanian Pipeline 1.

The General Court also finds that the Commission did not put the BEH Group in a position to argue its position fully as regards the infringement alleged against it and thus infringed its rights of defence.

In those circumstances, the General Court finds that the Commission has not duly established that the BEH Group abused its dominant position on the gas supply market in Bulgaria." [See more]  

Press release

5. DMA / DSA

5.1

05.09.2023- veröffentlicht 27.10.2023

Decision to open a market investigation - Apple

Core platform service category:

 DMA.100047 iPadOS - Online intermediation services

Decision

5.2

05.09.2023 – veröffentlicht 13.10.2023

Designation Decision - Amazon

Core platform service category:

DMA.100016 Amazon - online advertising services

DMA.100018 Amazon - online intermediation services - marketplaces

Decision

5.3

05.09.2023

Designation Decision - Samsung

EC accepted the rebuttal request of Samsung in relation to its web browser core platform service Core platform service category:

DMA.100038 Samsung - web browsers

Decision

5.4

05.09.2023 – veröffentlicht 12.10.2023

Designation Decision - Meta

Core platform service category:

DMA.100020 Meta - online social networking services

DMA.100024 Meta - number-independent interpersonal communications services

DMA.100035 Meta - online advertising services

DMA.100044 Meta - online intermediation services - marketplace

Decision

5.5

05.09.2023 – veröffentlicht 12.10.2023

Designation Decision - Apple

Core platform service category:

DMA.100025 Apple - operating systems

DMA.100027 Apple - web browsers

Decision

5.6

05.09.2023 – veröffentlicht 10.10.2023

Designation Decision - Microsoft

Core platform service category:

DMA.100017 Microsoft - online social networking services

DMA.100023 Microsoft - number-independent interpersonal communications services

DMA.100026 Microsoft - operating systems

Decision

5.7

05.09.2023 – veröffentlicht 10.10.2023

Designation Decision - Alphabet

Core platform service category:

DMA.100002 Alphabet - online intermediation services - app stores

DMA.100004 Alphabet - online search engines

DMA.100005 Alphabet - video-sharing platform services

DMA.100006 Alphabet - number-independent interpersonal communications services

DMA.100008 Alphabet - web browsers

DMA.100009 Alphabet - operating systems

DMA.100010 Alphabet - online advertising services

DMA.100011 Alphabet - online intermediation services - verticals

Decision

5.8

05.09.2023 – veröffentlicht 10.10.2023

Designation Decision - Byte Dance

Core platform service category:

DMA.100040 ByteDance - Online social networking services

Decision