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Anti-competitive agreements on technical developments (AdBlue)

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European Commission imposes fines of almost EUR 900 million on VW and BMW - Daimler was a key witness.

On 8 July 2021, the European Commission imposed fines of almost EUR 900 million on Daimler, the VW Group, consisting of Volkswagen, Audi and Porsche, and BMW. This sanctions an antitrust violation that has lasted for more than five years.

Background to the fines

The basis of the fines is that, according to the Commission's findings, the car manufacturers have restricted competition in the development of exhaust gas cleaning technologies with regard to diesel cars.

According to the Commission's findings, the car manufacturers held regular meetings to discuss the development of exhaust gas cleaning technologies. However, in this context the manufacturers also decided not to introduce any exhaust gas cleaning technologies that went beyond the legally prescribed minimum standard for a certain period of time (specifically: approx. 5 years). Albeit, the technology required for this was alredy available.

They also exchanged sensitive information on aspects of exhaust gas cleaning and agreed on the size, range and consumption of the cleaning technology (AdBlue) to be used.

Antitrust assessment

The conduct that was no sanctioned constitutes an infringement by object within the meaning of Article 101 (1) (b) TFEU. It had as its object the restriction of technical development and thus affected competition for product features relevant to customers.

Amount of fines

A fine of EUR 727 million was imposed on Daimler. However, Daimler was granted full immunity as it benefited from the leniency program in force at the time. Daimler reported the cartel law violation to the Commission and thus avoided a fine. The Volkswagen group has to pay slightly more than EUR 500 million, BMW around EUR 370 million.

The companies received a 10% reduction of the original fine because they reached a settlement with the Commission.

Practical advice

Previous decisions with high fines were mainly directed against price agreements and market sharing. Here, the Commission punishes agreements on technology, i.e. on product features. It is to be expected that in the future the Commission will examine cooperations between competitors increasingly critically. This applies in particular if there are indications that technical progress is being delayed.

It should be noted that already the talks themselves constitute an infringement. BMW had probably defended itself by saying that it had not implemented the agreements. However, the cartel authorities already impose fines for the exchange of information or the agreement, even if the companies do not implement them.

Environment-related agreements, such as on price increases in return for the use of more environmentally friendly technologies, will also be in focus. The current proceedings show how the Commission is using the means at its disposal to contribute to the realisation of the Green Deal.

In the proceedings, the parties also expressed legal uncertainties regarding the scope of permitted cooperation with competitors. The Commission's Horizontal Guidelines are particularly relevant here. These are currently being revised. Fieldfisher will soon offer a webinar on the expected changes.

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