On Monday 2 June, the European Commission imposed fines of €223.3 million and €105.7 million respectively on Delivery Hero and Glovo for participating in a cartel in the online market for the delivery of meals and basic necessities within the European Economic Area (see EUROPE 13459/33).
“It is the first time the European Commission has fined companies for ‘non-poach’ agreements”, under which companies agree not to hire or approach each other’s employees, said European Commissioner for Competitive Transition, Teresa Ribera. And “this is also the first decision which shows how companies can misuse small stakes in a rival company for anti-competitive reasons”, she added.
In July 2018, German company Delivery Hero acquired a stake in its Spanish competitor Glovo, which it progressively increased before taking control of the latter in July 2022. In the meantime, the two companies have initially signed a ‘non-poach’ agreement on employees.
The minority shareholding in the Spanish company enabled Delivery Hero to place two people on the Board of Directors. This position gave it influence over other shareholders at general meetings and access to sensitive commercial information (prices and characteristics of services, capacity, development strategies). This information was then used for anti-competitive purposes, in particular to align commercial practices and to allocate national markets geographically.
According to a European official, the two companies discussed “practically everything”. For example, in the Bulgarian and Romanian markets, one company acquired the other in order to grow. Elsewhere, when one company was already established in a market, the other undertook not to compete with it, and the two companies cooperated to respond to the arrival of any competitors. In addition, the two companies shared untapped markets around the world.
“Owning a shareholding is not illegal in itself. But this can become problematic when this shareholding is used to obtain privileged information and influence decisions in a way that could harm competition”, said Ms Ribera. She noted that the growth of the digital economy requires a learning phase for the Commission in order to be able to apply the EU rules in force, in particular the ‘DSA/DMA’ regulations governing the liability of digital platforms.
The amounts of the two fines, based on the gravity and duration of the cartel, were reduced by 10% because the two companies acknowledged their participation in the cartel and cooperated in the settlement procedure (Articles 7 and 23 of Regulation 1/2003 on cartel cases). (Original version in French by Mathieu Bion)