European and Swedish Antitrust News (December 21, 2020)

Illustration: European Commission 2020

The EU Commission has proposed new Digital Services and Digital Markets Acts which, if approved, will set rules about illegal content and advertising transparency and will provide strong tools against unfair business practices. In other news, the EU Commission has approved Google’s acquisition of Fitbit subject to conditions. In Sweden, the Competition Authority has sued dairy producer Arla for an information exchange, sued Malmö municipality for a direct procurement, and initiated a phase-II-investigation of the Altia-Arcus merger, while the court has ordered Hässleholm municipality to stop its anti-competitive behavior.

EU Commission proposes rules for digital platforms. If approved by the European Parliament and the Member States, a new Digital Services Act will set new rules on for example removal of illegal goods, services or content and advertising transparency, while a new Digital Markets Act will allow imposed fines of up to 10 percent of companies’ world-wide revenue if platforms acting as digital “gatekeepers” engage in unfair business practices.

SCA sues Arla Foods for illegal information exchange. The Swedish Competition Authority is suing major dairy producers Arla, demanding a 1 MSEK fine, for a strategic exchange of information with a competitor ahead of a joint procurement of dairy products by a number of municipalities in 2016. The SCA alleges that the exchange included information on prices and gross margins of products requested in the procurement. The involved competitor has since filed for bankruptcy. The case is controversial as Arla notified SCA through its leniency program.

SCA sues Malmö municipality for illegal direct procurement. The Swedish Competition Authority is suing Malmö municipality for an alleged illegal direct procurement of assisted living facilities, demanding an administrative fine of 10 MSEK. While the SCA has found that Malmö has entered a number of questionable written and verbal agreements over the past 3 years, the lawsuit concerns one specific agreement which the SCA estimates is a 147 MSEK direct procurement and the demanded fine is the maximum administrative fine possible by law.

Hässleholm municipality (again) ordered to stop preventing a private competitor. The Swedish Competition Authority went to court claiming Hässleholm municipality had excluded private participants from the market for fibre-optic connections by refusing access to municipality owned land to other companies than the municipality owned fibre company, and the Swedish Patent and Market Court has now ordered the municipality to stop its conduct or face a 25 MSEK fine. The court initially came to the same conclusion in 2019, but the Court of Appeal annulled that ruling and referred the case back to the Patent and Market Court earlier this year.–och-marknadsdomstolen-forbjuder-hassleholms-kommun-att-tillampa-konkurrensbegransande-forfarande/

SCA initiates phase-II investigation of Altia-Arcus merger. Finnish Altia and Norwegian Arcus are both major alcoholic beverage brand producers and distributors in the Nordics, particularly in spirits such as Vodka and Akvavit where they have a considerable combined market share. The Swedish Competition Authority has therefore initiated an extended investigation into the proposed merger. The merger is also under review in Norway and Finland.

EU Commission approves Google-Fitbit merger subject to conditions. Fitbit, a maker of fitness-tracking devices, is being acquired by Google. The merger had raised concerns that combining databases from Google and Fitbit would strengthen Google’s position in the advertising market and that Google could limited interoperability with Android smartphones for Fitbit’s competitors. However, Google has committed to, among other things, not use Fitbit data for Google Ads and maintain strict separation of data in the EEA and that competing wearable devices will have continued functionality with the Android API.

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