The Competition Corner: Latest updates (week 23-25)

In this blog we highlight the latest developments in competition law.

Case law 

Another judgement in the series of state aid cases brought by Ryanair against the European Commission
General Court 14 June 2023, ECLI:EU:T:2023:334, Case T-79/21 (Ryanair and Airport Marketing Services v Commission) 

The General Court has dismissed Ryanair’s plea, reinforcing the assertion that the state aid conferred upon the airline by France infringes EU internal market rules.

On 23 March 2017, the European Commission (Commission) received a complaint from Air France, alleging that the French Association for the Promotion of Tourist and Economic Flows had unlawfully granted state aid to Ryanair through marketing services agreements, with the aim of supporting air transport operations at Montpellier airport. Following an investigation, the Commission determined that these agreements were illegal and incompatible with the internal market as defined in Article 107(1) TFEU. Despite Ryanair’s attempt to contest the Commission’s decision, the General Court upheld the Commission’s stance and confirmed the illegitimacy of the state aid provided to Ryanair. 

District Court on jurisdiction over follow-on damages claims against Google
Amsterdam District Court 31 May 2023 (published on 7 June 2023), ECLI:NL:RBAMS:2023:3441 

Following Google’s abuse of dominance in the market for comparison services, Wolfson has filed a follow-on damages claim against it. Google disputes the jurisdiction of the Amsterdam District Court regarding damages suffered outside the Netherlands, citing the lack of necessary coherence as per Article 7(1) of the Dutch Code of Civil Procedure. However, the District Court states that Wolfson has sufficiently explained and substantiated the claims with reports. Consequently, it has concluded that it cannot outrightly dismiss these claims as evidently lacking prospects. 

District Court orders GUV to resume cooperation with DELA in preliminary relief proceedings
Gelderland District Court 5 June 2023, ECLI:NL:RBGEL:2023:3199 

DELA is engaged in life insurance and funeral services, while GUV operates crematoria and provides funeral services. DELA arranged funerals at GUV’s crematoria, until GUV unilaterally terminated the cooperation because, according to GUV, DELA’s improper working method. In response, DELA instituted preliminary relief proceedings, arguing primarily that GUV is abusing its dominant market position and, alternatively, that the long-term agreement should not have been terminated unilaterally. The Gelderland District Court acknowledges the existence of an economic dominant position based on a market share of at least 50%. Applying the Bronner criteria, the District Court concludes that the refusal to supply in this case does not exclude all competition in the market. Therefore, the first criterion is not met. However, the Court deems the sudden termination to be unacceptable according to the principles of reasonableness and fairness. As a result, the District Court orders GUV to resume cooperation with DELA. 

Administrative High Court for Trade and Industry (CBb) submits preliminary question regarding the interpretation of the Guidelines of the European Union on state aid in the agricultural and forestry sectors and in rural areas
Administrative High Court for Trade and Industry 6 June 2023, ECLI:NL:CBB:2023:279 

The subsidy application of an agricultural company for the physical connection to the heating network, under the Regulation on national EZK and LNV subsidies, was rejected because it would not be the agricultural company, but Eneco that would become the owner of the connection after installation. The agricultural company disagrees with the rejection of the subsidy application, arguing that the one-time contribution it pays for the connection falls within the costs mentioned in point 144, subparagraph (a), of the Guidelines of the European Union on state aid in the agricultural and forestry sectors and in rural areas 2014-2020 (2014/C 204/01). In light of this, the Administrative High Court for Trade and Industry (CBb) poses the following question to the ECJ: “Should the Guidelines of the European Union on state aid in the agricultural and forestry sectors and in rural areas 2014-2020 (2014/C 204/01), and in particular points 135, 136, 137, and 144, subparagraph (a), be interpreted in such a way that investment aid for financing the costs of construction, acquisition, or improvement of immovable property can only be considered as such if the beneficiary of that subsidy is or becomes the owner of the immovable property to which the costs relate?” 

Litigation vehicles underestimate the obligation to furnish facts in air cargo cartel follow-on case, according to the Court
Amsterdam District Court 24 May 2023 (published 7 June 2023), ECLI:NL:RBAMS:2023:3450 

Many damages claims arising from the air cargo cartel have been assigned to litigation vehicles SCC and Equilib. The Amsterdam District Court requests that the underlying parties provide evidence for each legal entity that it has at least purchased one aircargo transport service during the cartel period. SCC and Equilib argue that they can suffice with the claim that the economic group to which the legal entity belongs has purchased air cargo transport services. However, the District Court rules that a factual determination is required for each legal entity, as otherwise the obligation to furnish and the burden of proof cannot be met. Subsequently, the District Court decides for which underlying parties the proceedings will continue and which underlying parties must be dropped.  

Decisions of the ACM or the European Commission 

ACM: Roompot may acquire Landal, on the condition of selling thirty holiday parks
ACM concentration decision 12 April 2023 (published on 8 June 2023), Landal and Roompot 

Roompot and Landal are primarily active as holiday parks in the Netherlands. Roompot has expressed its intention to acquire Landal to the Authority for Consumers & Markets (ACM). The initially proposed concentration would have led to a combined market share of approximately 40-50% in the market for providing accommodations in holiday parks. Furthermore, due to the strong positions of the parties, price increases could have occurred in the market for rental mediation and marketing services. To address the competition concerns, the parties have submitted a remedy proposal. With this proposal, the parties will sell two holiday park brands (Hogenboom and Largo) and thirty holiday parks to Dormio. The ACM believes that the sale of thirty parks to Dormio resolves the competition issues in the aforementioned markets and creates a sustainable competitor to the parties.  

Legislation 

European Commission launces consultation on FDI Screening Regulation
The Commission has started a four-week consultation on the current EU framework for the screening of foreign direct investments. Stakeholders can provide feedback until 14 July 2023. Based on the outcome of the evaluation, the Commission may propose a revision of Regulation (EU) 2019/452 (FDI Screening Regulation).