Antitrust News & Competition for the Netherlands, Poland and Italy April 2021 | Instant News


Netherlands

National Competition Authority (NCA)

1. Acquisition of PGB by Global Automotive.

After conducting a detailed market study between tire manufacturers, competitors and buyers, ACM determined that quite a number of alternatives would remain in the tire market for retailers. ACM expects that sufficient competitive pressure will continue to be exerted, and that the new combination will not raise prices or reduce service quality. ACM is also assessing what the consequences will be for the market for replacement wheels. ACM has determined that, in that market too, sufficient competition will remain. On March 10, 2021, the Dutch Authority for Consumers and Markets (ACM) cleaned up acquisition of PGB by Global Automotive. Global Automotive and PBG are mainly active in the distribution of replacement tires and replacement wheels for cars and vans.

2. Further investigations are needed for the acquisition of three floricultural product transportation companies by the Dutch cooperative Royal Flora Holland.

If the parties decide to go ahead with their proposed acquisition and apply for a license with ACM, ACM will then further investigate the consequences of the planned acquisition, looking at the market for the transportation of floricultural products and the trading of floricultural products. ), a cooperative of Dutch floricultural farmers, is seeking to acquire three transportation companies – De Winter, Van Marrewijk (Wematrans), and Van Zaal – that specialize in handling flowers and plants. The joint activity will be based on a new company: Floriway. On March 5, 2021, ACM stated that it could not rule out possible anti-competitive concerns regarding the transportation of flowers and plants. Therefore, it is said, further investigation into this secured acquisition.

3. Europe Container Terminal (ECT) carries out the commitments it makes to ACM.

On March 22, 2021, ACM announced that ECT has implemented its 2019 and 2020 commitments to ACM on ECT planning criteria for inland shipping barges transporting containers between the ECT deep sea terminal at the port of Rotterdam and its hinterland. ECT has made its planning criteria more transparent, and it also applies these criteria. As a result of the new planning criteria, barge operators know how the planning is made and what requirements they have to meet to get priority.

Application of the ECN + Directive

The Netherlands Implementing Law comes into force on 18 February 2021. The law seeks to safeguard the independence of the National Competition Authorities (NCA) and their ability to effectively enforce competition laws. The main amendments are:

  • more limited use of information obtained from leniency and settlement statements;

  • the necessary judicial authorizations for all for inspections;

  • the obligation to seek the views of market participants before adopting commitments;

  • Strengthened ACM competencies:

(i) adopting a decision stipulating that the violation has occurred in the past without the imposition of a fine;

(ii) to impose temporary measures on businesses and business associations, with or without the payment of periodic fines where the risk of serious and irreparable harm to competition requires immediate action.

Sanoma – Iddink’s second tranche of merger approval was overturned by the appeals court.

Rarely cancellation decision (link in Dutch), the Rotterdam District Court on March 4, 2021, canceled the merger permit, which was issued by ACM on August 29, 2019, following a second round of investigations into the acquisition by Sanoma of the Iddink Group. Both companies offer student administration systems (SIS) for vocational education and access to digital learning resources. The court ruled, in an appeal filed by competing publisher Noordhof, that ACM failed to adequately excuse lack of incentives to enforce bundling, whereas most schools (major customers of the product) sought bundling to achieve efficiency.

Poland

The President of UOKiK will review the plan to merge the energy sector groups Orlen and PGNiG.

On March 26, 2021, the Polish Business Competition Authority (UOKiK) announced it would review a merger between two Polish energy sector groups in relation to PKN Orlen which gained direct control over PGNiG (Transaction). PKN Orlen is Poland’s leader in the market for the oil and petrochemical industry, active in the extraction and manufacture of natural gas and crude oil, as well as in the trade of asphalt and fuels (including aviation fuels). Earlier in 2021, PKN Orlen was granted UOKIK permission to take over Polska Press, one of the largest press publishers in Poland. PGNiG is a public company engaged in the exploration and production of natural gas and crude oil, as well as in the fields of import, distribution, storage and supply of natural gas, heat supply, and electricity and heat generation.

Due to the effects of the Transaction being of a broad community nature, it was initially subject to the jurisdiction of the European Commission. However, under EU law, a participant in a transaction can request that the transaction be examined by a national competition authority if the transaction could have a significant impact on competition in certain Member States. At the request of PKN Orlen, the European Commission referred the case to UOKiK.

The merger process will begin after the official submission is made to UOKiK; according to the PKN Orlen announcement, this will take place in the near future. As reported by UOKiK, this is the first transaction in 2021 in which a venture has asked UOKiK to take over from the European Commission.

The sports equipment distributor was fined for fixing prices.

On March 4, 2021, the President of UOKiK issued a decree against Spokey, a distributor of scooters, roller skates and sports mattresses sold under his own brand, and fined the venture more than half a million PLN (approximately EUR 120,000) for entering into an anti-competitive pricing agreement. with its retail partners. When UOKiK was founded, Spokey sold its products through its own online shop as well as through a network of business partners who sell Spokey sports equipment online through various websites, including the Allegro platform. In the course of the trial, supported by evidence gathered as a result of Spokey’s site search, the President of UOKiK concluded that Spokey was setting a minimum price for its products. This practice lasted for eight years (2010-2018), during which Spokey not only set minimum prices but also developed mechanisms to influence its partners in relation to the prices they used.

Spokey benefits from the European Union’s waiver program. Due to Spokey’s close collaboration with UOKiK, UOKiK determines the duration of the agreement and the applicable rules, and the company gets a penalty reduction of 50%. Instead of more than PLN 1.1 million, the sanctions amount to PLN 568,679. If Spokey does not withdraw from the declaration of voluntary retribution, his fine will be 10% lower.

Italy

Italian Competition Authority (ICA)

1. The Italian Competition Authority completed the acquisition by Intesa Sanpaolo of two insurance companies.

The Italian Competition Authority (ICA) issued a bulletin March 15, 2021, reporting that it completed the acquisition by one of Italy’s main banks, Intesa Sanpaolo, from two insurance companies: Aviva Vita SpA (Aviva), which has EUR 2/3 billion in turnover, and Lombarda Vita SpA (Lombarda), which has a turnover of EUR 1/2 billion.

The two targets are partly owned by Intesa Sanpaolo through UBI Banca SpA (UBI), which controls 20% Aviva and 40% Lombarda. The transaction allowed Intesa Sanpaolo to gain sole control over these two targets, thereby enhancing its role as a distributor of insurance products. In both cases, a favorable opinion from them is required. Both transactions were approved by the Italian Insurance Authority in phase I: they are considered not to raise significant competition concerns, due to strong competitors in the Italian insurance sector, such as Generali, Unipol, Gruppo Assicurativo Poste Vita and Allianz.

2. ICA adjusts the turnover threshold for merger filing purposes.

On 9 March 2021, ICA adjusts the relevant turnover threshold for merger application purposes to reflect variations in the GDP price deflator index. After this adjustment, the filing obligations in Italy are triggered when the following cumulative thresholds are met:

(i) the aggregate turnover of all participating businesses exceeds EUR 511 million (whereas the previous threshold was EUR 504 million);

(ii) the turnover of each of the at least two participating businesses exceeds Euro 31 million.

3. ICA proposes that the government amend Italy’s Antitrust Law (Law no. 287/1990).

On March 23, 2021, ICA submitted its annual recommendations to the government setting out its proposal for the so-called Legge Annuale per il Mercato e la Concorrenza (Annual Law on Markets and Competition). In its recommendations, the ICA, among others, advised the government to introduce the following amendments to the Italian Antitrust Law (L. 287/1990):

  • Adapt the substantial assessment tests to align them with those currently implemented by the European Commission under the EU Merger Rules, thereby addressing the “non-collusive oligopoly gap”;

  • Update the methodology for calculating turnover of financial institutions to align national regulations with those set at EU level;

  • To prevent certain deals from escaping merger control, give ICA the power to request notification of transactions that do not meet the turnover threshold, provided (i) one of the joining parties meets one of the two turnover thresholds provided by Italy. Legal or their combined turnover exceeds Euro 5 billion; (ii) ICA makes a request within six months of settlement of the transaction and (iii) ICA finds that there is a concrete risk of anti-competitive effects.

  • Extends the maximum duration of phase 2 of the merger review (i.e. in-depth investigation) from 45 to 90 days.

  • Introduce the arguable notion that companies are economically dependent on digital platforms to the extent that the latter “plays an important role in reaching end users and / or suppliers, also taking into account network effects and / or data access”.

  • Give ICA the power to enforce structural or behavioral improvements to businesses operating in multi-sided markets, such as digital platforms that provide intermediary services between businesses and end users / suppliers;

  • Introducing settlement procedures in antitrust investigations;

  • Strengthens ICA’s power to impose sanctions if requests for information are not fulfilled, even if such requests were not made in connection with investigations.

© 2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 98



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