Can an undertaking recover sums payed to the Antitrust Authority despite not having challenged the decision?
An undertaking that did not challenge, before the Administrative Court, a decision of the Italian Competition Authority (ICA) imposing a fine for participating in an anticompetitive agreement has the right to obtain a refund of the sum paid to the ICA in execution of the decision. The undertaking can claim a refund if the Administrative Judge, upholding the appeal lodged by other undertakings fined for the same conduct, annulled the decision, deeming the ICA's ascertainment of the anticompetitive agreement to be groundless.
This has been clarified by the Council of State which, with judgment no. 8568 of 19 December 2019, ordered the ICA to refund the sums paid by a leniency applicant in execution of the decision I733 with which the ICA had ascertained the existence of an anticompetitive agreement in the maritime agency services market.
The Council of State stated that in the light of the ascertainment of the non-existence of the anti-competitive agreement by the Administrative Judge, the sums paid in execution of an ICA decision by an undertaking which has not challenged the decision in front of the Administrative Court constitute a payment not due under Article 2033 c.c. whose restitution is a right of the paying undertaking.
The French Competition Authority will now be able to access data from electronic communications operators for its investigations. And what about the Italian Competition Authority?
In France, Decree No. 2019-1247 of 28 November 2019 set out the conditions by which the Autorité de la concurrence will be able to access the traffic data of telephone operators under the new power granted to it by the loi PACTE of May 2019. Specifically, whenever there are indications of a breach of competition rules and the traffic data is necessary for the purposes of the investigation, the Authority may submit a request for access to a newly created authority, represented by a member of the Council of State or a magistrate of the Supreme Court.
In Italy, to date, there is no law regulating the acquisition of connection data by the Italian Competition Authority.
The economic value of users' data: The Hungarian Competition Authority fines Facebook in a consumer protection case
With the decision taken in December 2019, the Hungarian Competition Authority has fined Facebook for claiming on the home page and on the Help Center that the offer of its services – namely the use of the social network platform – is free of charge. According to the Hungarian Authority, while it is true that the users do not have to pay to use the platform, Facebook benefits economically from the data collected from users, who in this way actually do pay for the services offered by Facebook.
The Hungarian Authority has ascertained that Facebook collects detailed information about its users' interests, behaviors and purchasing habits and it then uses such information to show targeted advertising to its users. According to the Hungarian Authority, the claims that the use of Facebook's services is free of charge distract the users' attention from the fact that they are indirectly paying a price for using such services in the form of the transmission of their data, thus resulting in a violation of users' rights.
The decision of the Hungarian Authority follows a partially similar decision taken by the Italian Competition Authority, adopted in November 2018 at the end of the proceeding PS 11112, with which the ICA fined Facebook EUR10 million.
Fiber network development in Germany: Binding commitments for two of the major fixed telecommunications opeators
On 5 December 2019, the German Competition Authority (Bundeskartellamt) accepted the commitments proposed by two of the strongest competitors in the market for fixed telephone services in the region concerned for the joint development of fibre-optic networks in some regions of Germany.
The agreement was examined under the rules on anticompetitive agreements (a parallel proceeding under merger control rules is still ongoing).
According to the Authority's preliminary assessment, the planned cooperation would have slowed down the deployment of gigabit-ready networks, thus discouraging investments by competitors, with negative effects on consumers.
In order to address these concerns, the parties have undertaken to: (i) carry out a commercially operated, not publicly funded upgrade of 300,000 connections reaching the end customer with fibre optic cable in the next four years, to some extent also in rural areas; (ii) independently participate in tender procedures for the funding of gigabit-ready telecommunication networks, especially in rural areas; (iii) refrain from specific strategic defence measures vis-a-vis telecommunications companies also intending to expand fibre-optic networks, and from solely investing in urban areas which already have cable networks; (iv) grant third parties non-discriminatory access to the new network and to high-quality technical upstream services.
A similar case was subject to the scrutiny of the Italian Competition Authority in 2018, which made binding the commitments of Telecom Italia S.p.A. and Fastweb S.p.A. in relation the setting up of a cooperative joint venture for the realization of the fibre-optic network in Italy.
The Court of Justice clarifies who has the right to request compensation for loss caused by a cartel
Article 101 TFEU must be interpreted as meaning that not only those active as a supplier or a customer on the market affected by a cartel but any other person who suffered a loss as a result of the anticompetitive behaviour may seek compensation.
In particular, those who provide subsidies, in the form of promotional loans, to buyers of the products offered on that market may seek an order that the undertakings which participated in that cartel pay compensation for the losses they suffered as a result of the fact that, since the amount of those subsidies was higher than what it would have been without that cartel, those persons were unable to use that difference more profitably. This principle has been clarified by the European Court of Justice, with a preliminary ruling of 12 December 2019, in Case C-435/18.
The main proceedings regarded a follow-on antitrust damage claim, filed by the alleged damaged by a cartel in the market for the installation and maintenance of lifts and escalators, ascertained by the Austrian Competition Authority. One of the claimants was the Province of Upper Austria, which granted promotional loans of amounts proportional to the total construction costs for the financing of building projects.
At the end of the proceedings of first instance, the Court rejected the compensatory claim of the above-mentioned body, due to the fact that it would not have been an operator active on the market affected by the cartel and thus suffered an indirect loss which is not eligible for compensation. After the appeal, The Court of Appeal annulled the decision and referred the case back to the Court of First Instance. Thus, the referred Court decided to refer to the Court of Justice the question as to whether the claimant would have been entitled to claim for compensation for the alleged loss suffered due to the cartel and the Court of Justice ruled the above-mentioned principle.
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