January 2022 competition updates in the Netherlands, Poland and Italy

Holland

Decisions, policies and market studies of the Dutch Competition Authority (ACM).

ACM Bans Mediq’s Proposed Acquisition of Eurocept Homecare.

On December 23, the Dutch Competition Authority (ACM) (link in Dutch) blocked Mediq’s proposed acquisition of Eurocept Homecare after an in-depth review. Mediq is an international supplier of medical products and healthcare solutions. Eurocept Homecare provides specialized medical care in patients’ homes in consultation with healthcare professionals. ACM concluded that the acquisition would give Mediq a very strong position in the field of portable electronic infusion pumps for patients at home and that the acquisition would result in higher prices and lower quality services. Therefore, ACM has decided not to grant a license (clearance) for this acquisition.

ACM prohibits Bergman Clinics’ proposed acquisition of Mauritskliniek.

On December 24, the ACM (link in Dutch) announced that after an in-depth review, Bergman Clinics may not acquire Mauritskliniek. The Bergmann and Moritzklinic Clinics are independent treatment centers that provide scheduled specialized medical care. The ACM concluded that the Bergmann Clinic already has a particularly strong position in relation to health insurers, which would become even stronger if the takeover were allowed, potentially driving up prices. The ACM reiterated that while independent growth is possible, when a dominant party takes over other smaller healthcare providers, growth can be limited.

ACM announces draft guidance on healthcare information technology.

On December 20, the ACM (link in Dutch) announced that it would publish in 2022 draft guidance on IT in healthcare, to clarify the framework and obligations for IT suppliers and other market participants arising from competition rules. The ACM emphasized that, within competition rules, there are possibilities for cooperation between hospitals to enhance their negotiating position towards IT suppliers (this statement is similar to the position previously taken by ACM on sustainability agreements). Hospitals are currently dependent on the existing Health Care Information System/Electronic Patient Record Provider (HIS/EPD). As switching to another HIS/EPD system is complex and expensive, suppliers are in a strong position that can raise healthcare costs and reduce innovation. Ultimately, according to ACM, patients pay a price for “seller reservations” due to inefficiency or poor quality of care.

ACM finalizes decision to liberalize market for High Quality Wholesale Access (HWT).

On December 23, ACM finalized its decision to deregulate the market for high-quality wholesale access (HWT). The European Commission evaluated the ACM’s decision and made no comments. In the HWT market, telecom operators are extending the reach of their networks to other telecom operators. These types of access services are high quality and reliable, serving exclusively business end users. ACM’s market analysis showed that the HWT market does not suffer from any bottlenecks caused by the market power of a single market participant, and that regulated access is used only to a limited extent. Therefore, ACM concluded that the market can also function well without regulation, while ACM will continue to closely follow developments in this business and access market.

ACM announces new European rules that will give consumers better protection when making digital purchases.

Sellers will have to ensure that consumers can use their purchases properly and safely during the life span of those products. Therefore, Sellers are also required to provide Product Updates for a reasonable and agreed period. If the product is for continuous service, it must function properly throughout the period of use. In addition, the provider must repair any defects free of charge. On December 17, the ACM announced that new European rules providing protection for consumers if something goes wrong with their (digital) purchases will come into effect in 2022. These rules are set out in the EU Sales of Goods Directive and the EU Digital Content Directive and will come into force in 2022. It comes into effect as soon as its application into Dutch law is completed. In addition, these rules take into account that when shopping online, consumers are increasingly making purchases outside their countries, and more products and services have digital elements. Thus, a “legal guarantee” (i.e. consumers’ right to products that are free from defects) also applies to products with a digital component (such as “smart” products), digital services (such as broadcasting) and digital content (such as e-books).

Plus and Coop supermarket chains may merge under certain conditions.

On December 22, the ACM (link in Dutch) decided that supermarket chains Plus and Coop may merge under certain conditions. Together, the two supermarket chains contain nearly 600 stores, in addition, Plus controls the Spar supermarket chain, bringing the total number of supermarkets between Plus and Coop to nearly 1,000. At the national market level, ACM does not perceive competition problems, as there are still strong competitors such as Albert Heijn and Jumbo. However, at the local retail level, ACM requires the sale of 12 supermarkets to a competitor to leave enough competition from other supermarkets within the local market.

ACM is investigating potential cartel presence in the food processing sector.

On December 1, the ACM announced that it was investigating a potential cartel in the food manufacturing sector. As part of this investigation, the ACM has conducted unannounced inspections (so-called “dawn raids”) at several food processing companies in the Netherlands, as well as at a company located outside the Netherlands, with the assistance of the agency in that other country.

According to the ACM, food manufacturers allegedly conspired to fix the purchase prices of agricultural products and the prices of their goods. In addition, companies are accused of concluding non-competitive market-sharing agreements. As is usual in the Netherlands, ACM has not released the names of any of the companies allegedly involved in the conglomerate and/or being raided.

Poland

The obligations imposed on benefit systems are intended to increase competition in the fitness industry.

Benefit Systems is a principal operator of a benefits program that provides access to sports and leisure facilities and its chain of fitness clubs. The president of UOKiK suspected that Benefit Systems had entered into non-competitive agreements with some fitness club chains. The Agreements are intended to ensure the exclusivity of Benefit Systems in cooperating with certain fitness clubs and to ensure that Benefit Systems will not cooperate with fitness clubs other than those covered by the Agreement.

In his December 7 decision, the President of UOKiK agreed to Benefit Systems’ commitments to implement certain measures to increase competition, including:

  • to provide at least one other benefits program operator access to certain large fitness clubs on fair, reasonable and non-discriminatory terms,

  • to publish on the Benefit Systems website a list of all criteria required for inclusion of fitness clubs in benefit programs operated by Benefit Systems, and

  • Cooperate on non-discriminatory terms with all clubs that meet the criteria.

The decision is not final as it can be appealed to the Competition and Consumer Court. If finalized, the resolution will set time frames for implementing the obligations and enable benefit systems to avoid a penalty of up to 10% of the company’s sales in the previous year.

Eurocash has been fined 76 million PLN for unfair use of contractual benefits.

On November 30, 2021, the President of UOKiK issued Resolution No. RBG-3/2021, to impose a fine in excess of PLN 76 million (approximately €16.5 million, US$20.2 million) on Eurocash for unfair use of contractual advantage in its relationships with entities that supply food and agricultural products to retail stores. Eurocash is a major fast-moving wholesaler of consumer goods in Poland. It is also active in retailing through various retail store chains.

Eurocash has been accused of imposing numerous unjustified duties on suppliers of agricultural and food products. Suppliers not only received any information on the cost and results of some services for which a fee was paid but also paid for services that were never provided or should have been provided without additional charges.

According to the head of UOKiK, none of the questionable fees constituted a reward for the diligent services of suppliers; Instead, they simply served as a way to reduce the return Eurocash pays to its suppliers. The UOKiK President’s decision is not final, as it can be appealed to the Competition and Consumer Court.

Italia

The Italian Competition Authority (ICA) is imposing fines on Unieuro, Mediaworld, Leroy Merlin and Monclick totaling more than €10 million for unfair trade practices.

On December 23, 2021, the Italian Competition Authority (ICA) terminated three cases of unfair trade practices against Unieuro SpA, its subsidiary Monclick, Leroy Merlin Italia Srl and Mediamarket SpA (Mediaworld). The companies were fined a total of 10.9 million euros.

Investigations established that the four companies – which conduct e-commerce activity on their corporate websites for consumer electronics and other household products – acted in a manner deemed unfair by the Immigration and Citizenship Administration against consumers. First, ICA has found that companies disseminate inaccurate and misleading information about the availability and prices of products sold online, as well as about delivery times. In other cases, companies require payment before the conclusion of the contract or unilateral cancellation of consumer orders. Second, INS found that companies delayed or failed to deliver products purchased and paid for by consumers, provided misleading information about the status of shipments, or even delayed and created obstacles in exercising consumer rights to withdraw and refund. Additionally, companies have halted many customer care activities during the pandemic.

The Civil Aviation Administration described such behavior as misleading and aggressive towards consumers, given that consumers were deceived and forced to agree to unnecessarily restricting their contractual rights. The International Youth Alliance also stressed that e-commerce must be developed in a balanced way so that consumer rights are fully and clearly expressed, especially during the pandemic when reliance on online channels increases.

The Italian competition authority updates the state of consumer and retail spending at its meeting with consumer associations.

On December 15, 2021, ICA President Rustichelli met with consumer and user associations to present the highlights and results of 2021 ICA activities. President Rustichelli emphasized ICA’s strong commitment to consumers, particularly during the pandemic. According to Mr. Rustichelli, consumers have been particularly affected by the negative economic effects of the pandemic.

He noted that between January 2019 and July 2021, ICA’s activity resulted in economic relief for more than 580,000 consumers, with more than 34 million euros returned. In addition, Mr. Rusticelli stressed the critical role of consumer associations in reporting potential misconduct to ICE, ensuring that the agency’s continued efforts to protect the most vulnerable market segments.

In addition, through the proposed legislation, the government has followed through on many of the ICA’s proposals to strengthen the merger control system. First, the government proposed giving the Federal Authority for Identity and Citizenship the authority to request notification of certain transactions that do not exceed the business volume limits stipulated in Law No. 287/90. Moreover, the government proposed to amend Article 9 of Law No. 192/1998 by creating an assumption of economic dependence on operators that have a business relationship with brokerage service providers via digital platforms that “play a critical role in reaching end users and/or service providers, also in terms of network effects and/or data availability.” The bill then refers to specific behavior that may constitute an abuse of economic dependency.

© 2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, No. 14

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