The Federal Court of Justice recently held that absolute prohibitions to participate in online price comparison tools imposed on distributors in selective distribution systems amount to a hardcore restriction under Article 4c of the EU Block Exemption Regulation on Vertical Restraints. A closer look at the German decision reveals some doubts as to its compatibility with two European Court of Justice decisions.
A recent Celle Regional Court decision on a clear resale price maintenance case has been heavily debated because the court held that restrictions of competition by object can be compatible with Article 101(1) of the Treaty on the Functioning of the European Union if they have no potentially significant effects on competition. The Federal Supreme Court has since overruled the decision, leaving it open as to whether the potential effects on competition must be considered in such cases.
The Federal Parliament recently adopted the ninth amendment to the Act Against Restraints of Competition. The agreed amendments take account of the ongoing digitalisation of the economy and also intend to close legal gaps in the liability for violations of competition law. However, one of the main aims of the proposed reform is to implement the EU Directive on Antitrust Damages Actions, increasing the efficiency of competition enforcement.
Following an anonymous complaint, the Federal Cartel Office (FCO) recently investigated a joint venture between two competitors. The FCO did not have to decide finally on the case, but it preliminarily concluded that the joint venture facilitated market coordination between the two parents. The FCO applied a presumption according to which both parents would take into account information from the joint venture when deciding on their own market conduct.
The Federal Cartel Office (FCO) recently issued a decision on a merger control notification from Lufthansa and Air Berlin regarding a wet lease. The agreement is part of Air Berlin's restructuring process. The case underlines the fact that the FCO's application of the concept of 'control' differs from the European Commission's view and raises further questions relating to German merger control.
The Federal Cartel Office recently published draft guidelines on resale price maintenance. While the guidelines are officially targeted at the food retail sector, they are also likely to have a significant effect on other sectors. A public consultation has been initiated and interested parties are invited to submit comments by March 10 2017. The Federal Cartel Office has stated that it is likely to prosecute vertical price fixing in fines proceedings, not in mere administrative proceedings.
The Federal Cartel Office recently imposed fines totalling €4.43 million on five furniture manufacturers and four managers for resale price maintenance. While the office did not impose any fines on the retailers, it made clear that this decision was a matter of discretion and taken in view of the particular facts of the case. The proceedings were initiated by dawn raids in 2014 and 2015, following complaints by retailers. This indicates that vertical infringements are a top priority for the Federal Cartel Office.
The long-awaited first draft of a reform of the Act against Restraints of Competition was recently published. To a significant extent, the directive has overtaken existing, predominantly claimant-friendly German practice and law regarding actions for damages following competition law infringements. However, the reform leaves room for the courts' discretion and thus creates legal uncertainty in relation to central issues.
The Federal Court of Justice has rendered a decision on information exchange between two competing public broadcasters. The court followed the European Court of Justice's approach regarding the presumed causal link between concerted practice and the subsequent market conduct of the parties concerned. The decision confirms that the standard for illicit information exchange under German competition law is the same as under EU competition law.
The Celle Regional Court recently clarified that agreements with distributors regarding minimum retail price can be legal if limited to a short promotional period. The court confirmed that not every hardcore restriction of competition necessarily infringes EU and German competition law. Instead, it must be established on a case-by-case basis whether the agreement has the potential of appreciably restricting competition.
Although the leniency applicant status of a company affords protection against cartel fines, it does not protect the company from necessary self-cleaning and potential personnel changes. Contracting authorities are well advised when investigating the facts of the misconduct to urge competitors to disclose the wrongdoing and measures taken as early as possible. A checklist with detailed requirements and comparative evaluation can help to guarantee equal treatment.
The Federal Cartel Office (FCO) has published its decision regarding the prohibition in a distribution agreement against authorised ASICS retailers allowing a third party to use ASICS brand names on its website in order to guide customers to the websites of authorised ASICS retailers. The decision clarifies the FCO's position regarding online sales issues. The FCO's view has been criticised for being stricter than that of other European competition authorities.
A group of 41 publishers recently filed suit with the Berlin Regional Court, alleging that Google's demand for the use of snippets (ie, short text excerpts of publishers' content) free of charge was a violation of antitrust law. The court disagreed, ruling that Google could insist on the condition that no royalties be payable before showing snippets in its search results.
The Federal Cartel Office (FCO) recently closed its proceedings against several car manufacturers after they committed to refrain from the contested behaviour. The proceedings concerned restrictions that the car manufacturers had imposed on their dealers regarding their ability to cooperate with internet intermediaries. The decision is proof of the FCO's scepticism when it comes to restrictions of internet distribution.
The Federal Cartel Office (FCO) recently imposed fines totalling approximately €152 million on manufacturers and dealers of confectionery, coffee, pet food, beer and body care products. In this case, any reduction of fines (including immunity from fines in certain cases) depended on the degree of cooperation with the FCO and whether the proceeding ended by mutual agreement.
The Federal Supreme Court has ruled that the Federal Association of Press Wholesalers did not breach EU competition law when it negotiated uniform contract conditions with publishers on behalf of its members. The decision ensures that wholesalers have market access under the same conditions and that press articles are available throughout Germany.
The Federal Cartel Office recently decided that a non-competition clause in a lease agreement for shops in a factory outlet centre prohibiting tenants from opening a shop in another outlet centre within a 150-kilometre radius infringed the prohibition of agreements that restrict competition. Outlet centre operators should check whether their lease agreements comply with the authority's standards.
When the Federal Cartel Office adopts a decision and imposes administrative fines on companies for infringements of competition law, it usually publishes a corresponding press release. A recent Dusseldorf Court of Appeal decision has defined the extent of the office's right to provide information on a specific case and the legal protection options of affected companies.
A recent proceeding was one of the rare cases in which the Federal Cartel Office (FCO) granted full immunity from fines even though it had sufficient evidence to obtain a search warrant. The case demonstrates that companies which are subject to a dawn raid may still have the chance to obtain full immunity if they are the first to cooperate fully by providing information which the FCO has not obtained from an anonymous whistleblower.
The Federal Cartel Office recently fined a manufacturer of portable navigation devices €300,000 for enforcing resale price maintenance on retailers. The case is another example of the fact that resale price maintenance is strictly prosecuted and also bears testament to the close cooperation between national authorities.