On December 6, 2022, the Frankfurt am Main Court of Appeal[1] dismissed an action to declare the existence of contribution claims against other cartel members. The action was filed in an attempt to suspend the limitation periods of upfront contribution claims that arose at the moment when the purchasers of the cartel suffered harm.
The German Federal Cartel Office (“FCO”) has endorsed a “one-time temporary cooperation project” of Germany-based sugar manufacturers Nordzucker, Südzucker, Pfeifer & Langen and Consun Beet to coordinate capacities for the processing of sugar beets from September 2022 to March 2023 in light of the dawning gas supply shortage.[1]
On February 17, 2021, the German Federal Cartel Office (“FCO”) published its third report on market power in the electricity generation sector (“Market Power Report”), analyzing the competitive landscape from October 1, 2020 to September 30, 2021.[1] Again, the FCO published its results one year earlier than statutorily required because of the continuing phase-out of nuclear and coal energy.
Between January 18 and January 20, 2022, the German Federal Cartel Office (“FCO”) raided the German premises of four associations and several manufacturers of electrical cables and wires in relation to alleged coordination of industry-standard metal surcharges.
On December 28, 2021 and January 21, 2022, the German Federal Cartel Office (“FCO”) imposed fines totaling €7.3 million on Maurer SE (“Maurer”) and Mageba GmbH, Göttingen (“Mageba”) for bid rigging and market allocation.[1]
On December 9, 2021, following ex officio proceedings,[1] the German Cartel Office (“FCO”) concluded that the acquisition of customer relationship management software provider Kustomer, Inc., (“Kustomer”) by Facebook Inc., re-named Meta Platforms Inc. (“Meta”) since October 2021, is notifiable under the German merger control regime as it falls under the € 400 million transaction value threshold of the ARC[2] and asked Meta to submit documents to review the transaction.[3] On January 11, 2022, the parties notified the transaction to the FCO.
On October 11, 2021, the FCO published two new guidelines, the leniency guidelines and guidelines on the setting of antitrust fines.[1] Both guidelines reflect revisions to the Act against Restraints of Competition (“ARC”) resulting from the 10th Amendment of the ARC earlier in 2021.[2] While the leniency program was legally anchored only by the 10th Amendment of the ARC, the FCO’s new leniency guidelines largely correspond to the former guidelines as issued in 2000 and updated in 2006. In contrast, the FCO’s new fining guidelines substantiate several important methodical changes introduced to the law by the 10th Amendment of the ARC and implement judicial practice which has in the past differed considerably from the FCO’s principles in some cases.
On October 5, 2021, the Monopolies Commission published its Special Report on the draft Digital Markets Act (“DMA”)[1] welcoming many rules of the draft DMA but also proposing amendments.