On 8 July 2021, the European Commission imposed fines of €875 million on BMW, Daimler and the Volkswagen Group (consisting Volkswagen, Audi and Porsche) for an antitrust violation lasting more than five years.
According to the Commission's findings, the above car manufacturers restricted competition in the development of exhaust gas cleaning technologies for diesel cars. The Commission also found that the manufacturers held regular meetings to discuss the development of exhaust gas cleaning technologies. However, they agreed to not introduce any such technologies that would exceed the legally prescribed minimum standard of a five-year shelf-life, even though the technology was already 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.
The companies' conduct constituted an infringement by object according to Article 101 (1) (b) of the Treaty on the Functioning of the European Union (TFEU). The object of the infringement was to restrict technical development, which affected competition for products relevant to customers.
While Daimler received a €727 million fine, it was granted full immunity as a beneficiary of the leniency programme(1) in force at the time. Daimler had reported the cartel law violation to the Commission and thus avoided having to pay the fine. The Volkswagen Group, on the other hand, will pay €502 million, and BMW around €372 million.
The companies received a 10% reduction of the original fine after reaching a settlement with the Commission.
Previous fines of this proportion were mainly imposed for issues related to price agreements and market sharing. In this case, however, the Commission punished agreements on technology such as product features. It is expected that in the future the Commission will become increasing critical in its examinations of cooperations between competitors, particularly if there are indications that technological progress is being delayed.
In fact, the companies' talks themselves already constituted an infringement. While BMW attempted to defend itself by saying that it had not implemented the agreements, the cartel authorities impose fines based on the exchange of information or the agreement itself, regardless of whether the company actually implemented them.
During the proceedings, the penalised parties also expressed uncertainties regarding the legal parameters of working with competitors. These parameters are provided for in the Commission's Horizontal Guidelines, which are currently being revised.
The Commission is expected to take a more critical view of environment-related agreements, such as those in which competitors agree to use more environmentally friendly technologies, but simultaneously reach an understanding that they will increase their prices in order to recover their investments. Its approach to the above case indicates the rigorous means it will take to achieve climate neutrality in Europe by 2050 with the Green Deal.(2)
For further information on this topic please contact Raoul Schätzler at Fieldfisher by telephone (+49 211 950 749 0) or email ([email protected]). The Fieldfisher website can be accessed at www.fieldfisher.com.
(1) Further information is available here.
(2) Further information is available here.