Fieldfisher updates
New antitrust law: new instruments in area of digital platforms, higher thresholds in merger control
Fieldfisher- Competition & Antitrust
- Germany
- 04 February 2021
An amendment to the Act against Restraints of Competition recently entered into force, regulating issues relating, in particular, to the steady advance of digitalisation. Other important amendments relate to merger control. In the context of adapting competition law to the ongoing digitalisation, a notable change is that the Federal Cartel Office can preventively prohibit certain types of conduct by companies which have an overriding importance for competition across markets.
Bathroom fittings cartel: ex-board members are not liable for company's cartel fines
Fieldfisher- Competition & Antitrust
- Germany
- 10 December 2020
In two decisions, the Saarbrücken Regional Court rejected the liability of management bodies for cartel fines imposed on a company. Bathroom equipment manufacturer Villeroy & Boch claimed damages from four ex-board members with regard to a fine imposed by the European Commission for the claimant's participation in the bathroom fittings cartel (2010) and legal fees.
FCO provides further information on development of B2B internet platform
Fieldfisher- Competition & Antitrust
- Germany
- 19 November 2020
The Federal Cartel Office (FCO) has given further advice on the development of a business-to-business internet platform in a recently published case report on OLF Germany. The FCO's main concerns are the increased transparency between competitors on the platform and the transfer of information to OLF's shareholder Shell.
FCO continues to act against price fixing by manufacturers against distributors: Alhambra guitars
Fieldfisher- Competition & Antitrust
- Germany
- 22 October 2020
Under pressure from the Federal Cartel Office (FCO), guitar manufacturer Alhambra has distanced itself from influencing the selling prices of wholesalers and distributors. The FCO investigated Alhambra on the suspicion that it had exerted pressure on wholesalers and distributors to comply with minimum prices on the German market and urged distributors to raise their retail prices. The FCO has been active in the field of price fixing in recent years and this article provides a historic round-up of cases.
Federal Court of Justice rules on statute of limitations for bid-rigging agreements
Fieldfisher- Competition & Antitrust
- Germany
- 15 October 2020
The Federal Court of Justice recently issued a decision on the statute of limitations for bid-rigging agreements. According to the court, the limitation period does not begin with the conclusion of the contract resulting from the anti-competitive agreement; rather, it begins later with the complete execution of the contract.
Resale price maintenance? Not every discussion on reseller's pricing is illegal
Fieldfisher- Competition & Antitrust
- Germany
- 08 October 2020
In Germany, any form of pressure not to reduce prices below a certain level (including the granting of advantages) is prohibited. However, the Dusseldorf Higher Regional Court has clarified that not every discussion on resale prices is prohibited. Even the termination of a supply relationship by the supplier due to the retailer's sales prices failing to meet its expectations is permissible. However, suppliers should beware: threatening a retailer with non-supply if they fail to enforce a certain price level is illegal.
FCO publishes annual report: focus on high fines and digital economy
Fieldfisher- Competition & Antitrust
- Germany
- 01 October 2020
The Federal Cartel Office (FCO) recently published its Annual Report 2019. This article highlights the topics which the FCO covered in its report, including COVID-19, cartel prosecution, merger control, the digital economy, the energy industry, trade, consumer protection and the Competition Register.
Amazon versus marketplace merchants: FCO is investigating
Fieldfisher- Competition & Antitrust
- Germany
- 24 September 2020
The Federal Cartel Office (FCO) is investigating whether Amazon influences pricing on the Amazon marketplace. According to the FCO, it received numerous complaints from merchants regarding Amazon's conduct. The investigation is one of a number of antitrust measures being undertaken in Germany with regard to powerful platforms (eg, Facebook and Booking.com). The German legislature has also become active and included special provisions for powerful platforms in the upcoming antitrust law.
Federal Court of Justice demonstrates antitrust law limits to data collection through Facebook
Fieldfisher- Competition & Antitrust
- Germany
- 23 July 2020
The Federal Court of Justice recently decided in interim proceedings that Facebook must implement a Federal Cartel Office order of 15 February 2019 regarding the storage and processing of user data with immediate effect until the decision in the main proceedings. This decision is a milestone with respect to antitrust law limits for data collection through internet platforms for which user data is extremely important.
FCO guidance on cooperation between competitors during COVID-19 crisis
Fieldfisher- Competition & Antitrust
- Germany
- 30 April 2020
The antitrust authorities have signalled their approval for cooperation between competitors during the ongoing COVID-19 crisis. President of the Federal Cartel Office Andreas Mundt and EU Commissioner Margrethe Vestager emphasise that the authorities are open to direct communication. According to Mundt, even after the crisis, cooperation might be necessary to overcome economic difficulties.
Cartel damage claims: Federal Court of Justice corrects understanding of 'affected' goods
Fieldfisher- Competition & Antitrust
- Germany
- 09 April 2020
A recent Federal Court of Justice decision clarifies open questions relating to cartel damages and simplifies the presentation of claims by plaintiffs, as it will no longer be necessary to present and prove that a cartel agreement had an actual impact on an acquisition transaction under the requirements of Section 286 of the Code of Civil Procedure. It is to be expected that the number of cartel damage actions pending before the German courts will continue to increase.
FCO guidance on B2B platforms: launch of digital agricultural platform approved
Fieldfisher- Competition & Antitrust
- Germany
- 27 February 2020
The Federal Cartel Office (FCO) has raised no objections to the launch of 'Unamera', a digital trading platform for agricultural products. During the review, the FCO provided guidance on the competition law implications of digital platforms, specifically with regard to the obligations where shareholders are active in the same market as the platform's users, the market statistics published on these platforms and the risk of price fixing.
Cartel damage claims for indirect damage: questioning German law on cartel damages after ECJ decision
Fieldfisher- Competition & Antitrust
- Germany
- 16 January 2020
Under German law, a plaintiff does not only have to prove the unlawful behaviour of a liable party (ie, in the case of cartel damages, a competition law infringement such as a cartel) and any damage caused by this behaviour; the Act Against Restraints of Competition also requires a plaintiff to be "affected" by unlawful behaviour. However, the broad wording of the act could still be too restrictive in light of a recent European Court of Justice decision and will therefore have to be amended or reinterpreted.
Steel manufacturers fined record €646 million for agreeing surcharges and exchanging information
Fieldfisher- Competition & Antitrust
- Germany
- 19 December 2019
The Federal Cartel Office has fined three companies and three persons a total of approximately €646 million. The companies agreed and exchanged certain supplements and surcharges for so-called 'quarto plates' in Germany for approximately 14 years. Companies and associations should review their practices with regard to price components (particularly surcharges) as this is not the first decision on this matter.
