Archives: German Developments

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CJEU to Rule on Extradition of EU Citizens in Criminal Antitrust Proceedings

The first European citizen to be extradited from Europe to the United States for criminal antitrust conduct recently succeeded in having a Berlin court refer the matter of his extradition to the Court of Justice of the European Union (CJEU) in the context of his damages action with regard to his extradition, after a series … Continue Reading

Update: Peculiarities of the Merger Filing Requirements in Germany and Austria

As many dealmakers doing business in Europe have realized, German and Austrian merger filing requirements are sometimes a bit tricky, and in some respects different from the rules in place at EU level and in other EU member states. For instance, it may be that a transaction has to be notified in one of these … Continue Reading

E-Commerce: National Competitions Authorities Weigh In on Sales Restrictions Regarding Online Marketplaces

In May 2015, the European Commission launched a two-year, industry-wide inquiry into the e-commerce sector to gather data on the functioning of e-commerce markets, so as to identify possible competition concerns. This sector inquiry focuses particularly on potential barriers erected by companies to cross-border online trade in goods and services where e-commerce is most widespread … Continue Reading

The European Union’s Highest Court Rules on Standard-Essential Patents, Injunctions and Abuse of Dominance

The long-awaited ruling on the seeking of injunctions in the context of standard-essential patents encumbered by fair, reasonable, and non-discriminatory (FRAND) terms has been delivered by the Court of Justice of the European Union, in Huawei v. ZTE C 170/130. Although the judgment lays down the legal test applicable to injunctions involving standard-essential patents, and … Continue Reading

First Successful Extradition of Foreign National for Price-Fixing Violation

For the first time, the U.S. Department of Justice (DOJ) has successfully litigated an extradition of a foreign national on an antitrust charge.  This extradition shows that the DOJ is still pursuing individuals it charged several years ago with criminal price-fixing conduct and is a watershed moment in DOJ criminal enforcement of the antitrust laws. … Continue Reading

German Court Rejects National Competition Authority Liability for Damages After Unlawful Prohibition of a Merger

The Higher Regional Court in Düsseldorf yesterday dismissed an action for damages of €1.1 billion brought by GN Store Nord against the German Federal Cartel Office. The judgment sheds some light on the possibility for companies to claim damages in the context of an unlawful prohibition of a proposed merger. Click here to read the … Continue Reading

European Commission Investigates Exemption from Renewable Energy Surcharge for Energy-Intensive Companies in Germany

The European Commission today opened a State aid investigation into the German Renewable Energy Source Act (the EEG), claiming that the EEG may have given unlawful advantages to energy-intensive companies in Germany. These companies now face the potential risk that benefits totalling billions of euros may have to be repaid. The European Commission (Commission) today … Continue Reading

EU National Courts May Have to Order Recovery of State Aid Before European Commission Makes Final Decision

The European Court of Justice decided on 21 November 2013 that EU national courts must assume that a measure qualifies as State aid, if the European Commission has opened an in-depth investigation into that measure. This judgment is relevant to all cases in which the disputed measure was already granted, or is planned to be … Continue Reading

New German Cartel Fine Guidelines

by Martina Maier, Philipp Werner and Robert Bäuerle The German Federal Cartel Office has just published new Guidelines on the Setting of Fines for antitrust law infringements.  With these guidelines, the German Federal Cartel Office departs from the method of setting fines used by the European Commission and other national competition authorities in Europe. As … Continue Reading

Germany: New Fining Guidelines

by Martina Maier and Philipp Werner The German Federal Cartel Office (FCO) has recently published new Guidelines for the Setting of Fines.  These guidelines implement the recent decision by the German Federal Supreme Court (BGH, judgment of 26.02.2013), according to which the 10 percent maximum fine does not constitute a cap but the upper limit of the … Continue Reading

EU State Aid Investigation into German Renewable Energy Law

 by Martina Maier and Philipp Werner The European Commission (Commission) is likely to open a formal EU State aid investigation into the German Renewable Energy Source Act. According to the Commission, the Act may have given unlawful advantages to renewable energy producers and energy-intensive companies (those producing chemicals or steel) in Germany. Producers and companies that benefited … Continue Reading

A Dutch Court Hands Down the First Substantive Damages Judgment in the Netherlands for an Infringement of Competition Law

by David Henry and Wilko van Weert In a recent judgment, a District Court in the Netherlands (the DCA) handed down a judgment in what is the first substantive damages judgment in the Netherlands for a breach of competition law.  In issuing the declaration of liability, the DCA held that ABB must pay damages to … Continue Reading

German Federal Cartel Office Levies Administrative Fine Due to Incomplete Merger Notification

by Martina Maier, Philipp Werner and Robert Bäuerle The German Federal Cartel Office (FCO) has imposed an administrative fine for the submission of incomplete information in a merger notification.  The missing information concerned details about shareholdings essential for the competitive assessment analysis.  The shareholdings belong to a private individual who controlled the notifying party.  Companies … Continue Reading

Germany Amends Competition Law: Key Changes

by Martina Maier, Philipp Werner and Robert Bäuerle On 18 October, the German Federal Parliament (Bundestag) adopted several changes to German competition law.  The new legislation still has to be passed by the second chamber of the German parliament (Bundesrat) but the changes are expected to come into force on 1 January 2013.  Overall, the … Continue Reading

European Commission Considers Taking Over Cartel Investigations to Prevent Exploitation of German Law Loophole

by Martina Maier and Philipp Werner Under German law, companies may escape cartel fines by undertaking an internal restructuring.  The German competition authority has indicated a willingness to reallocate such cases to the European Commission, which can impose a fine on the corporate group regardless of any internal restructuring.  Commission officials speaking at a conference … Continue Reading

German Court Protects the Confidentiality of Leniency Submissions

by David Henry, Martina Maier and Philipp Werner In the wake of the seminal European Court of Justice (ECJ) ruling in case C-360/09 – Pfleiderer AG v Bundeskartellamt, Amtsgericht Bonn (Bonn local court), in a decision rendered on 18 January 2012 (case 51 Gs 53/09), has refused to give a damages claimant access to leniency … Continue Reading

Antitrust Inspections in The Energy Exchange Market

by David Henry and Philipp Werner On February 7, the European Commission (EC) and the European Free Trade Association (EFTA) Surveillance Authority conducted unannounced inspections in the energy exchange market.  Representatives of Nord Pool Spot (Lysaker, Norway) and EPEX Spot (Paris, France and Leipzig, Germany) announced that the companies were subject to inspections.  It is … Continue Reading

Jumping The Train: The General Courts Sets a High Bar for Private Damages Claimants to Join Cartel Decision Appeals

by Philipp Werner The General Court rejects intervention of damages claimants in appeal before the European courts by taking a narrow and rather formalistic view of legal interest in the appeals.  While it is true that damages actions are legally possible as stand-alone actions, the reality in Europe is that third parties’ damages actions stand … Continue Reading

German Competition Authority Starts Sector Inquiry Into Food Retail

by Philipp Werner and Martina Maier The German Competition Authority has started a sector inquiry in the food retail sector yesterday and has sent questionnaires to 21 retailers and over 200 producers in the food and beverages industry. According to the press release (at the moment only available in German at: http://www.bundeskartellamt.de/wDeutsch/download/pdf/Presse/2011/2011-09-16_PM_SU_LEH.pdf), the inquiry will … Continue Reading

German Federal Cartel Office Consults on Substantive Merger Control – Draft Guidance Focuses on Market Dominance

by Philipp Werner, Martina Maier and David Henry On 21 July 2011, the German Federal Cartel Office (FCO) published a consultation paper on substantive merger control called “Draft Guidance on Substantive Merger Control” (Draft Guidance).  This is the first time the FCO has consulted on a guidance paper.  Comments on the draft guidance can be … Continue Reading

EU’s Top Competition Court Rules that Companies Seeking Damages May Have Access to Leniency Statements

by Martina Maier, Philipp Werner, Andrea Hamilton and David Henry A recent decision by the Court of Justice of the European Union may make it easier for prospective claimants to obtain at least those leniency statements and related materials that are submitted to the national competition authorities of the EU Member States.  Companies doing business … Continue Reading

Supreme Court Allows the Passing-On Defense in Antitrust Damages Actions (Judgment of 28 June 2011 – KZR 75/10)

by Philipp Werner The German Supreme Court, in a landmark ruling handed down on 28 June 2011, has held that members of a cartel are able to defend themselves against a claim for damages by raising the defense that the relevant applicants have passed on the damage caused by higher prices onto a downstream market … Continue Reading
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