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Category Archives: German Developments

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First Successful Extradition of Foreign National for Price-Fixing Violation

Posted in Cartel Enforcement, DOJ Developments, German Developments

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. [...]

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

Posted in German Developments, Mergers & Acquisitions

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 [...]

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

Posted in EC Developments, Energy/Commodities, German Developments

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 [...]

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

Posted in EC Developments, German Developments

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 [...]

New German Cartel Fine Guidelines

Posted in Cartel Enforcement, EC Developments, German Developments

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 [...]

Germany: New Fining Guidelines

Posted in German Developments

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 [...]

EU State Aid Investigation into German Renewable Energy Law

Posted in EC Developments, Energy/Commodities, German Developments

 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 [...]

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

Posted in Cartel Enforcement, EC Developments, German Developments

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 [...]

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

Posted in Cartel Enforcement, German Developments, Mergers & Acquisitions

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 [...]

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

Posted in Cartel Enforcement, EC Developments, German Developments

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 [...]

Antitrust Inspections in The Energy Exchange Market

Posted in EC Developments, Energy/Commodities, French Developments, German Developments

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 [...]

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

Posted in Cartel Enforcement, EC Developments, German Developments

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 [...]

German Competition Authority Starts Sector Inquiry Into Food Retail

Posted in German Developments

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 [...]

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

Posted in German Developments, Mergers & Acquisitions

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 [...]

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

Posted in EC Developments, German Developments

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 [...]

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

Posted in Cartel Enforcement, German Developments

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 [...]

German Antitrust Regulator Steps Up the Fight Against Gun-Jumping

Posted in German Developments, Mergers & Acquisitions

by Martina Maier and Philipp Werner More than 100 countries worldwide have merger control regimes.  In the majority of these regimes, including the U.S., EU and most EU Member States, parties to a transaction may not close a deal without approval from the competition antitrust regulator.  An infringement of this obligation, or "gun-jumping", carries risks [...]

German Supreme Court Allows Indirect Purchaser Claims and Passing-On Defence in Cartel Damages Actions

Posted in Cartel Enforcement, German Developments

by Martina Maier and Philipp Werner On Tuesday, June 28, 2011, the German supreme court (Bundesgerichtshof-BGH) has clarified two important questions concerning cartel damages actions in Germany. First, indirect purchasers as well as direct purchasers are entitled to seek damages from cartel members. Second, cartel members can use the "passing-on" defence and argue that their [...]

Interplay Between Antitrust and Criminal Law in Europe

Posted in Cartel Enforcement, EC Developments, German Developments

by Veronica Pinotti and Martino Sforza In Europe, the interplay between antitrust and criminal law at the national level may vary significantly by jurisdiction. Some European Union member states, such as the United Kingdom, Ireland, and Romania, have criminalized competition law. Other jurisdictions, such as Germany and Italy, do not envisage criminal penalties for anticompetitive [...]

Top EU Court Rules That Companies May Have Access to Leniency Statements Submitted to National Competition Authorities

Posted in Cartel Enforcement, EC Developments, German Developments

by Martina Maier, Philipp Werner and David Henry The European Court of Justice (ECJ) ruling of 14 June 2011 followed a case that originated in Germany.  Pfleiderer, a firm in the wood industry, was considering a damages claim against members of a paper cartel.  It sought access to the cartel files held by the German [...]

German Regulator Steps Up Enforcement of Merger Standstill Obligation

Posted in EC Developments, German Developments, Mergers & Acquisitions

by Martina Maier and Philipp Werner The majority of merger control regimes around the world impose standstill or waiting period requirements for notifiable transactions, e.g. the US, the EU and most EU Member States. If a transaction meets the filing thresholds, it must be notified to the competent antitrust regulator and must not be closed [...]