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New German Antitrust Rules: A Positive Move for Compliance Programs

What has changed? On January 19, 2021, new German antitrust rules entered into force under the 10th amendment Act to the Act against Restraints of Competition (ARC) and introduced a number of significant changes. The Act, inter alia, revised the provisions relating to fine calculation for antitrust violations, and in doing so underlined the importance of compliance programs. For further changes, please refer to our previous blogpost. Specifically, an objectively effective compliance program can now lead to a reduced fine being calculated if the German Federal Cartel Office (FCO) concludes that certain conduct is in violation of antitrust rules, but the company had implemented appropriate compliance measures before the violation. What this means: Previously, FCO practice was more rigorous and only rarely accepted compliance programs to be effective. The general rules in Germany relating to sentencing meant only compliance programs that were introduced in the...

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New German Merger Control Thresholds: A More Business-Friendly Approach?

What Happened: On January 19, 2021, major changes to German antitrust/competition law, i.e. the 10th Amendment Act to the German Act Against Restraints of Competition (ARC) entered into force. In addition to introducing stricter abuse control, in particular over digital companies with a strong market position (so much so that one may refer to the act as the “ARC Digitisation Act”) and effecting changes to procedural rules and cartel prosecution, the new law also introduces substantive changes in merger control rules which may bring significant relief for international transactions. More information on the ARC Digitisation Act and other altered antitrust/competition rules  will follow in this blog. The thresholds of German merger control have traditionally been very low in comparison to other international regimes. The German legislator has now decided to significantly increase the domestic turnover filing thresholds. Last week’s discussions in the German...

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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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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 and their shareholders required to submit notifications should be aware that the omission of information in merger notifications before the FCO can result in fines not only for the notifying company but also for the company(ies) and individual(s) controlling it. 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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