Public enforcement – competition authorities active in a broad variety of industries

Both the European Commission and the German Federal Cartel Office have been actively prosecuting cartels in a broad variety of industries and sectors in 2023.

The European Commission fined a number of players, including ethanol producers, pharma companies and defence companies.

In addition, the European Commission conducted investigations or inspections in the online food delivery sector, the construction chemicals sector, the medical devices sector, the synthetic turf sector, the fashion sector, the energy drinks sector and the fragrance sector.

Furthermore, the European Commission opened an investigation into possible anticompetitive practices by Microsoft regarding Teams (by tying or bundling Teams to Office 365 and Microsoft 365).

The Federal Cartel Office fined road builders for collusive tendering and was very active in numerous other areas. Even after the 2022 Vertical Block Exemption Regulation, price parity clauses or most-favoured-nation clauses (Lieferando; PayPal), i.e. clauses intended to ensure the best conditions possible for the party using them, remain a focus of the Federal Cartel Office.

The Federal Cartel Office is also examining whether Vodafone infringed competition law by impeding 1&1's options for co-using radio masts. In addition, the Federal Cartel Office initiated abuse of dominance proceedings, for example with regard to discount structures (Coca-Cola) or in abuse of dominance control relating to energy price relief (energy suppliers).

As regards sustainability initiatives, the Federal Cartel Office tolerated the help granted to cocoa farmers in the relevant countries of production, Ghana and Cote d’Ivoire, to earn a living income.

Moreover, there were several interesting decisions by the European courts which competition authorities will have to observe in future (administrative offences and fines) proceedings.

The European Court of Justice (judgment of 29 June 2023, C-211/22) clarified with regard to the concept of restriction of competition by object that it has to be interpreted restrictively and that a hardcore restriction (as defined in the Vertical Block Exemption Regulation) does not necessarily entail a restriction by object. According to the judgment, competition authorities always have to consider and recognise the specific circumstances of the individual case (see also our Noerr News article).

The European Court of Justice (judgment of 14 September 2023, C-27/22) also further specified the requirements regarding the application of the ne bis in idem principle ("double jeopardy doctrine”). As a result, several (national) authorities investigating the same undertaking based on the same facts will have to coordinate their steps in the future, among other things.

Besides this, the General Court handed down a noteworthy decision (judgment of 18 October 2023, T-590/20) where the General Court emphasised that the European Commission has particularly wide discretion when determining the amount of fines, especially when taking into account criteria to increase such fines. However, the General Court also confirmed that the European Commission has to comply with the principle of proportionality and provide sufficient reasons for the amount determined, even in settlement procedures. As a result of this decision, those affected (in particular companies) now have a little bit more leeway when it comes to successfully defending themselves against certain aspects, even if the competition proceedings were terminated by means of a settlement.

 

This article is part of the Competition Outlook 2024. You can find all Competition Outlook articles here.