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Competition

European Union

At the last moment before the expiry of the previous block exemption regulation for the insurance sector, which has been in force since 2003, the European Commission has adopted EU Regulation 267/2010. As expected, the commission has restricted the freedom that insurers have enjoyed in the past with the introduction of a new regulation, thereby increasing legal uncertainty.

The European Commission has published an external study on the quantification of antitrust damages. This issue is of central importance to all antitrust damages claims. The study "Quantifying antitrust damages – towards non-binding guidance for courts" was drawn up by Oxera Consulting Ltd in collaboration with a team of lawyers and economists.

Germany

Overview
Including: Amendments to the Act against Restraints of Competition; New Regime on Horizontal and Vertical Restraints; Abuse of Dominant Position; Merger Control; Extended Powers of Competition Authorities; Increased Fines; Private Enforcement.

The Dusseldorf Higher Regional Court recently delivered a decision regarding access to leniency statements in cartel proceedings. The court stated that access is denied on the grounds that applicants must trust in the confidential treatment of their leniency statements. It is expected that future requests for access will remain subject to the decisions of the courts in each case.

The Bonn Regional Court recently dealt with the issue of legal privilege in internal audit documents. On the basis of its decision, it appears that internal audit documents – even those prepared by external counsel – can be seized during a dawn raid on a company. However, not all German courts share this view.

The Dusseldorf Higher Regional Court recently refused to pre-empt the Federal Cartel Office in a preventive action regarding the question of whether a transaction was subject to merger control. According to the court, such actions are inadmissible. If parties are in doubt regarding a filing requirement, they should file.

In a recent case the Munich Higher Regional Court found that a parent company had benefited economically from a cartel and was therefore fully liable towards its two former subsidiaries to pay the total fine imposed by the European Commission, thus excluding any claim for compensation. The companies had formed an economic entity during their participation in a cartel.

Following the decision of the European Court of Justice in Pfleiderer, the Local Court of Bonn took a robust stance in favour of protecting leniency-related documents. Since the Local Court of Bonn has exclusive jurisdiction on appeals against Federal Cartel Office decisions to withhold documents contained in its file, it is unlikely that in future cases leniency-related documents will be disclosed to third parties seeking damages.

Gun jumping and other violations of the obligation to suspend a transaction prior to clearance can be costly in Germany. Foreign-to-foreign mergers are subject to German merger control if they have a 'domestic effect' – a term that is interpreted widely by the Federal Cartel Office (FCO). The FCO has repeatedly made clear that it will enforce this obligation, and has imposed fines on a number of occasions.

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