by Silke Heinz
On July 6, 2017, the Commission has opened two proceedings because of provision of incorrect or misleading information in merger control proceedings, i.e. against Merck (Merck/Sigma-Aldrich) and GE (GE/LM Wind). The allegation is that the companies did not or disclose too late information that was important for the assessment of the merger or the remedies package, respectively. At the same time, the Commission has opened proceedings against Canyon for possible gun jumping in the context of its acquisition of a Toshiba unit. This concerns in particular the structure of “parking” the target with an interim third party prior to the merger clearance. The parties in all three proceedings may face fines. Silke Heinz is quoted on these proceedings in Global Competition Review, see here .
by Silke Heinz
On May 30, 2017, the Bundeskartellamt (FCO) has published guidelines on remedies in merger control. The guidelines offer a detailed and helpful overview of the FCO’s practice and related jurisprudence, with many examples. The document elaborates on the regulatory framework requiring structural remedies under German law, as well as the FCO’s preference for divestitures in practice. Silke Heinz deals with the most important aspects of the guidelines and compares the remedies practice in Germany to the practice at EU level in a contribution to e-Competition Bulletin, see here.
by Silke Heinz
On June 8, 2017, the new competition law reform in Germany (9th amendment to the Act Against Restraints of Competition) has finally come into force. It includes several novelties, such as in the area of private damages (implementation of the EU directive and disclosure of evidence), merger control (new threshold based on the transactional size), the notion of market definition and market power in the area of digital platforms, closing the liability gap regarding fines in the case of legal succession (so called “sausage gap”), new limited powers for the FCO in the area of consumer protection, etc. Silke Heinz explained the most important changes in a blog on Kluwer Competition Law Blog, to which we refer again here.
by Silke Heinz
On May 19, 2017, the European Commission imposed a fine of € 110 million on Facebook for having provided misleading information in responses to requests for information during the merger control proceedings regarding the acquisition of WhatsApp in 2014. The Commission has the power to impose fines for providing misleading or incorrect information in merger proceedings, in the amount of up to 1% of a company’s aggregated worldwide turnover. This is now the first time that the Commission has used this power. The fine on Facebook is relatively high, but remained below the 1% turnover threshold, given that the Commission found mitigating circumstances, inter alia that Facebook cooperated in the infringement proceedings. Silke Heinz is quoted on the decision in Global Competition Review, see here.
by Silke Heinz
On April 5, 2017, the Düsseldorf Court of Appeals has confirmed the FCO’s landmark decision in proceedings against Asics that a manufacturer of branded running shoes cannot generally ban its authorized dealers from using price comparison websites within a selective distribution system (link to the FCO’s press release on the Court’s decision in German here.
The FCO considers Asics as pilot proceedings and has already previously found (e.g. in Adidas) that such restrictions in selective distribution systems constitute hardcore restrictions which cannot be exempted. The Court has now confirmed this view (at least with respect to selective distribution systems for running shoes). It remains open after the Court decision whether a branded goods manufacturer, instead of a general, ban may impose concrete qualitative requirements for the internet presence of its authorized dealers on such third party websites, which might also ultimately lead to the result that using certain price comparison sites would be banned. Silke Heinz comments on the Court decision, i.e. what is publicly available from the FCO’s corresponding press release in the Global Competiton Review, see link here
by Silke Heinz
Following the Parliament (March 9, 2017), the Federal States Council, Germany’s second legislative chamber, has approved the most recent reform to German competition law (March 31, 2017). Accordingly, several new rules will enter into force shortly, in particular in the area of damages for cartel infringements. Silke Heinz has published a post on Kluwer Competition Law Blog on the reform, see here.
by Silke Heinz
The German parliament has adopted the 9th reform of German antitrust law on March 9, 2017. The second legislative chamber representing the states still needs to consent. The reform encompasses a range of amendments and novelties, inter alia the implementation of the EU damages directive into German law, a new filing threshold for merger control based on the transaction size, procedural rules to speed up the ministerial merger authorization process, provisions on the notion of market definition and market power in the digital age, closing the gap regarding liability for fines in cases of legal succession (so-called “sausage gap”), limited new powers for the FCO in the area of consumer protection, as well as an exemption from the cartel prohibition for certain types of cooperation among press publishing houses. Silke Heinz is quoted on the new merger control filing threshold in Global Competition Review, see here.
by Silke Heinz
On February 14, 2017, the FCO has concluded its excessive pricing proceedings against suppliers of district heating, inter alia with further commitment decisions. Overall, the proceedings let to compensations or future price decreases for concerned end customers in the total amount of approximately € 55 million. Silke Heinz is quoted by the Global Competition Review on the conclusion of proceedings, see link.
by Silke Heinz
The FCO has published the draft notice on January 25, 2017 for public consultation. Silke Heinz comments on the draft in Global Competition Review, link to article here
by Silke Heinz
Silke Heinz is named in the prestigious Global Competition Review’s list of “Women in Antitrust 2016”, featuring 150 female academics, economists enforcers and private practitioners worldwide (link).
