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Antitrust M&A Snapshot | DOJ Arbitrates Market Definition Dispute While EC Clears Acquisition of Broadband and Energy Networks

There was significant antitrust activity in the third quarter of 2019. In the United States, the Federal Trade Commission (FTC) and Department of Justice (DOJ) continued an active docket challenging M&A transactions. DOJ is resolving antitrust reviews significantly faster than the FTC, following DOJ's 2018 policy establishing a six-month target. The DOJ also made use, for the first time, of its authority to arbitrate a market definition dispute, potentially opening the door for a new tool the DOJ could employ to resolve challenges more rapidly. In the European Union, the European Commission (EC) agreed to clear, subject to conditions, the acquisition of broadband and energy networks following lengthy Phase 2 investigations. Meanwhile, the national European regulators opened new in-depth investigations into commercial radio advertising, software as a service for airlines, autonomous sea surface vehicles and the promotion of live music events (all in the...

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Five Things To Know About German Merger Control

As reported previously, German competition law was recently amended. The amendments included with the introduction of a “size of transaction”-threshold a notable change with respect to German merger control. The following is a reminder of five important features of German merger control which you should be aware of: The jurisdictional thresholds of German merger control are easily triggered German merger control applies if the parties to a transaction (usually the acquirer and the target) exceeded, in the last financial year, certain turnover thresholds. In an interna­tional context, these thresholds are relatively low and easily triggered: Joint worldwide turnover of all parties > € 500 million, and German turnover of at least one party > € 25 million, and German turnover of another party > € 5 million. There is a new “size of transaction”-threshold Since June 2017, German merger control can also be triggered if a newly introduced “size of...

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THE LATEST: German Antitrust Authority Issues Guidelines on Resale Price Maintenance

On 12 July 2017, the German Federal Cartel Office (FCO) published a guidance paper (Guidance Paper) on the prohibition of resale price maintenance (RPM). The Guidance Paper has a particular focus on the food retail sector. At the same time, it offers good insights into the FCO’s current overall thinking on RPM. The FCO reiterates that companies engaging in RPM may be subject to severe fines. In addition, it is evident from the Guidance Paper that the FCO has a very broad understanding as to what may be considered as RPM. WHAT HAPPENED: RPM describes a situation where a supplier and a retailer agree that the retailer will not resell the supplier’s products below a certain (minimum) price. While RPM falls under the rule of reason under US Federal antitrust law, it is considered as a hardcore antitrust restriction in most European jurisdictions, as well as under some US State antitrust laws (cf. Maryland’s Attorney General’ recent challenge of RPM). The FCO is...

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European Commission Launches New Cartel Reporting Tool, Member States Laud the Role of Whistleblowers

European Commissioner of Competition Margrethe Vestager made news when she announced that the European Commission had launched a new IT system enabling individuals to anonymously report cartel activity. In parallel, several EU Member States have–in recent weeks–highlighted the role of individual informants in their own enforcement efforts. Taken together, these developments show that the stakes of effective and meaningful antitrust compliance continue to rise, as individuals have more avenues to report anticompetitive conduct. Speaking in Berlin on March 16, 2017, Commissioner Vestager stated, “We’ve discovered a lot of cartels thanks to leniency programs […] But we don’t just rely on leniency. We pay attention to other methods as well. And that includes encouraging individuals to come forward, when their conscience is troubled by the information that they have about a cartel. That’s why we recently launched a new IT system to help people tell us anonymously...

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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 full article.

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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 fining range. With these guidelines, the German FCO departs from the method of sitting fines used by the EU Commission and other competition authorities.

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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 changes are less far-reaching than many of the proposals discussed during the preparatory phase of the reform.  The changes, however, are significant and will have to be taken into account by companies doing business in Germany. The article summarizes the main points of the reform. To read the full article, click here.

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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 submissions held by the German Federal Cartel Office (FCO).  Although strongly welcomed by the FCO, the decision is a blow to potential damages claimants in Germany, especially as it is not open to appeal. To read the full article, click here. 

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German Antitrust Regulator Steps Up the Fight Against Gun-Jumping

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 that are generally well understood.  But companies should be aware that the German Federal Cartel Office (FCO) has recently taken a more aggressive approach in its enforcement of gun-jumping, in particular concerning the fining policy for gun-jumping. To read the full article, click here.

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

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 Competition Authority (FCO) in order to substantiate its claim.  A dispute followed over whether disclosing the documents of companies who had cooperated with the FCO would undermine the national leniency programme since potential leniency applicants would fear eventual disclosure. A German court asked the ECJ for a preliminary ruling whether or not the provisions of EU competition law are to be interpreted as meaning that cartel victims can be granted access to leniency applications received by an EU Member State competition authority. The ECJ has held  that it was for the courts and tribunals of each EU Member State on the...

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