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EU Competition Currents | September 2020

The Netherlands

On Aug. 18, 2020, the Dutch Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfslevenreduced a fine imposed by the Dutch Authority for Consumers & Markets (ACM) by 99%. The fine, imposed on an undertaking, was initially EUR 1 million, but was reduced to EUR 10,000. ACM asked the Tribunal to reduce the fine due to special circumstances, including the COVID-19 outbreak and its consequences for the undertaking. The undertaking had been waiting for a final verdict for some time, and the final verdict could have driven the undertaking into bankruptcy.

The ACM decided in 2017 that three companies made secret, prohibited pricing agreements to restrict competition and, consequently, a fine was imposed. The Rotterdam court upheld ACM’s decision but lowered the fine to EUR 1 million in 2018 in a court decision, which has not been published yet. The undertaking is trying to block publication of the enforcement decisions. As a result of this Tribunal verdict, ACM will have to pay back EUR 990,000 to the undertaking, as the fine was apparently already paid. In exchange for lowering of the fine, the undertaking renounced its grounds for appeal. This means that the competition law infringement is now final, and third parties could initiate civil damage claims. This case could have consequences for other fines, including possible reductions.

Poland

A.  The President of UOKiK imposes a fine of PLN 115 million (approx. EUR 27 million) on the Biedronka chain of stores.

On Aug. 5, 2020, the Office of Competition and Consumer Protection (UOKiK) imposed a fine of PLN 115 million (USD 30 million) on Jeronimo Martins Polska, owner of the well-known Biedronka chain of grocery stores in Poland, for violating consumer rights. UOKiK questioned the practice of presenting different prices on the shelf to those at the checkout, or not displaying prices on the shelf at all. Such practice had been used by Biedronka for several years.

UOKiK’s intervention resulted from numerous consumer complaints as well as information provided by Province Trade Inspection Authorities about irregularities concerning price discrepancies in shops belonging to the Biedronka chain. In addition to the fine, shops in the Biedronka chain must inform consumers of their rights in the event of discrepancies between the price of goods displayed on the shelf and those at checkout. The decision is not final and can still be appealed to the Court of Competition and Consumer Protection.

B.  President of UOKiK imposes record-breaking fine of PLN 213 million (approx. EUR 50 million) on Russian gas giant Gazprom.

On July 29, 2020, UOKiK imposed a fine of almost PLN 213 million (USD 57 million) on Gazprom for failure to cooperate in proceedings aimed at investigating whether the financing arrangements for the construction of the Nord Stream 2 project (a 1,220 km-long gas pipeline from Russian coast through the Baltic Sea to Germany) between Gazprom and its European partners were concluded in breach of Polish merger control rules – i.e., without the antimonopoly consent from UOKiK. The proceedings were initiated against Gazprom (Russia); Engie Energy (France); Uniper (German); Wintershall (Germany); OMV (Austrian); and Anglo-Dutch Shell (Austrian).

Several times in the course of the proceedings, the president of UOKiK requested Gazprom to submit its agreements with the remaining participants in the joint venture regarding gaseous fuel transmission, distribution, sale, supply, and storage. The documents, however, never reached UOKiK. The president of UOKiK found that Gazprom had not even applied for consent to the relevant Ministry in Russia in order to satisfy UOKiK’s request. This was considered, in UOKiK’s view, to be an intentional action. The fine for the obstruction reached the maximum level under Polish law, i.e., equivalent of EUR 50 million.

Gazprom is the second company to be fined by UOKiK for failure to cooperate in this case – in 2019, a fine of PLN 172 million (USD 45 million) was imposed on another participant, Engie Energy.

Italy

A.  ICA’s investigation into alleged abuse of dominant position in the maritime transportation market in the Strait of Messina.

On Aug. 4, 2020, the Italian Competition Authority (ICA) opened an investigation into Caronte & Tourist S.p.A., which carries out ferrying activities across the Strait of Messina. The investigation will ascertain if Caronte – the dominant operator in the Strait of Messina in the “maritime transport of passengers with rubberized means of transport and commercial means of transport with driver” market and that is the de facto monopolist on the route Villa San Giovanni-Messina – applies excessively onerous prices and contractual conditions, violating Italian Antitrust Law. In particular, according to ICA, the prices applied by Caronte seem to be (i) significantly higher than those practiced by other operators and not connected to the hypothetical costs for providing the service and (ii) discriminatory towards passengers travelling alone with cars.

B.  ICA’s authorization of the acquisition by BPER of 500 bank branches from UBI.

On Aug. 4, 2020, ICA cleared the acquisition by BPER Banca S.p.A., (BPER) – a bank listed on the Milan Stock Exchange heading the banking group of the same name; active in the offer of banking, financial, and insurance products; and already having 1,350 bank branches – of about 500 further bank branches of Gruppo UBI (UBI). This operation is linked with the acquisition of UBI by Intesa Sanpaolo (ISP), one of the main Italian banking institutions. Indeed, transfer of the above-mentioned branches will be carried out by ISP in order to implement part of the measures imposed by ICA to eliminate its concerns over the acquisition of UBI. The acquisition was cleared by ICA due to the absence of substantial horizontal overlap and absence of possible vertical competition concerns.

European Union Commission

The list of State aid cases published on the Commission’s dedicated website shows that during August 2020, the Commission handled about 90 cases concerning measures related to the COVID-19 outbreak. For instance, on Aug. 27, 2020, the Commission adopted a decision not to raise objections concerning certain measures to be implemented by Romania in order to provide support for SMEs and certain related large enterprises to overcome the economic crisis caused by COVID-19. The day before, the Commission approved an amendment to the umbrella scheme implemented by Hungary that was already authorized in July; through the amended umbrella scheme, undertakings can obtain direct grants for investments aiming to preserve or create new job opportunities.

Moreover, on Aug. 21, the Commission authorized a State aid scheme notified by Croatia aimed to support the maritime, transport, transport infrastructure, and tourism sectors impacted by the COVID-19. On the same day, the Commission declared an aid notified by Italy concerning the municipality of Campione d’Italia to be compatible with the internal market. Campione d’Italia is a municipality constituting an Italian exclave in the Swiss territory. Italian authorities affirmed that the COVID-19 outbreak has started to affect the real economy in the municipality of Campione and thus notified an aid measure in the form of tax advantage, in particular: (a) a 50 % reduction in income and regional production (IRAP) taxes; and (b) a tax credit granted to undertakings carrying out investments in that territory.

Yuji Ogiwara, Stephen M. Pepper, Gillian Sproul, Hans Urlus, Dawn (Dan) Zhang,  Jacomijn Christ, Filip Drgas, Simon Harms, Marta Kownacka, Shuhei Mikiya, Pietro Missanelli, Jose Abel Rivera-Pedroza, Ippei Suzuki, Rebecca Tracy Rotem and Alan W. Hersh contributed to this series.

 See here for US coverage: US Competition Currents | September 2020

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 255
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About this Author

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Andrew G. Berg Chairs the Global Antitrust Litigation & Competition Regulation Practice and advises clients on litigation, mergers and acquisitions, and other antitrust and competition-related matters before the Federal Trade Commission (FTC), the Antitrust Division of the Department of Justice (DOJ), state attorneys general, and in private litigation. Andrew's practice includes a full range of antitrust transactional and mergers and acquisitions experience, including Hart-Scott-Rodino filings at the FTC and DOJ, and related merger analysis issues. He also counsels...

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Gregory Casas, Greenberg Traurig Law Firm, Austin, Houston, Energy and Business Litigation Law
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Gregory J. Casas is the Administrative Shareholder for the Austin office and focuses his practice on antitrust, complex business litigation, and energy and natural resources law. Greg's antitrust and complex business litigation practices are international in scope. His antitrust practice includes litigating price-fixing, bid-rigging, and market allocation claims, and providing counseling for DOJ/FTC investigations, joint venture formation, mergers and acquisitions, pricing plans, and other contractual relationships. Greg's complex business litigation experience includes...

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Calvin Ding Corporate and Compliance Lawyer Greenberg Traurig China
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As a U.S. attorney who has worked in China for over decade, Calvin Ding has deep experience in international anti-corruption advisory and investigations, cross-border litigation and e-discovery, as well as compliance with Chinese anti-trust, anti-bribery, and privacy laws.

In the anti-corruption space, Calvin frequently advises companies on comprehensive compliance programs, risk assessments, pre-transaction compliance diligence, government policies, and internal investigations. Having spent several years working on the day-to-day implementation of an FCPA compliance program in...

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Víctor Manuel Frías Garcés Commercial Law Attorney Greenberg Traurig Mexico City, Mexico
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The practice of Victor Manuel Frías is focused on commercial law, including competition, mergers and acquisitions and arbitration.

On the competition side, Mr. Frías has represented clients in numerous cartel investigations before the Competition Commission in different industries for over 20 years. He frequently represents clients in pre-merger filings. Mr. Frías has been ranked by different publications as one of Mexico’s premier competition attorneys. He often appears before Mexico’s Federal Specialized Courts in Competition and Telecommunications matters.

On the M&A...

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Robert Gago Competition Law Attorney Greenberg Traurig Warsaw, Poland
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Robert Gago is Head of the Competition Law Practice at the Greenberg Traurig Warsaw Office. He advises clients in the field of competition and consumer protection law and economic regulation. His experience includes representation in administrative anti-trust proceedings conducted by competition enforcement agencies. Robert advises on competition law aspects of M&A projects and represents clients in merger proceedings before the Polish Competition Authority as well as in procedures before the European Commission. He also represents undertakings in court proceedings regarding appeals...

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