On May 9, 2019, the German Federal Administrative Court (“FAC”) ruled that access to the preparatory notes (so-called “opinions”) of the rapporteurs of the FCO’s decision divisions under the German Freedom of Information Act is restricted, because public access to the rapporteurs’ opinions would jeopardize the decision divisions’ deliberation process.[1] The FAC thus ultimately confirmed the FCO’s denial of a journalist association’s access request to information on one of the FCO’s merger assessments, including access to the rapporteur’s opinions.
FCO Rapporteurs’ Opinions Protected From Access
On May 9, 2019, the German Federal Administrative Court (“FAC”) ruled that access to the preparatory notes (so-called “opinions”) of the rapporteurs of the FCO’s decision divisions under the German Freedom of Information Act is restricted, because public access to the rapporteurs’ opinions would jeopardize the decision divisions’ deliberation process.[1] The FAC thus ultimately confirmed the FCO’s denial of a journalist association’s access request to information on one of the FCO’s merger assessments, including access to the rapporteur’s opinions.
CMA’s Use of Director Disqualification Powers Reflects Renewed Focus On Individual Responsibility
In May 2019, the CMA obtained competition disqualification undertakings (“CDUs”) from three individuals for involvement in a cartel relating to
Secretary of State for Health v Servier and Others
On 17 April 2019, the High Court ruled on the extent to which factual findings of the General Court of the European Union are binding on claimants in follow-on damages actions before UK national courts. This case concerns damages claims against Servier, following the European Commission’s 2014 infringement decision, which found that Servier had abused a dominant position and entered ‘pay for delay’ agreements with rivals.
Recent Jurisprudence on Prima Facie Evidence vs. Factual Presumption in Cartels Follow-on Damages Actions
On December 11, 2018, the German Federal Court of Justice (“FCJ”) held that, at least in relation to quota fixing and customer allocation cartels, plaintiffs could no longer rely on prima facie evidence to establish that a cartel infringement led to causal damage.[1] The FCJ accepted, however, a factual presumption (tatsächliche Vermutung)— softer compared to prima facie evidence—that cartels would lead to an overcharge, and held that such a presumption was of “high indicative significance”. Since then, lower courts have rendered a number of judgments and struggled with applying the new evidentiary standard in practice.
Enforcement by Numbers
As the charts below show, enforcement by concurrent competition agencies has increased substantially since the ERRA came into force.[1]
Five Years of “Enhanced Concurrency” in UK Antitrust
In November 2013, David Currie – then Chairman of the CMA – identified the low volume of competition cases in regulated sectors: “These sectors account in total for some 25% of the economy. They are also typically characterised by monopolistic or oligopolistic market structures. This might suggest the need for more, rather than less, competition enforcement than in other parts of the economy.”[1]
Ameos Abandons Planned Acquisition of Sana Kliniken Ostholstein
On March 28, 2019, hospital operator Ameos Psychiatrie Holding (“Ameos”) withdrew its notification of the proposed acquisition of the majority
The Hearing Officer for Competition Proceedings Publishes the Activity Report for 2017-2018
On March 22, 2019, the European Commission’s Hearing Officer published his Activity Report for 2017-2018.[1] The Report provides key statistics on the Hearing Officer’s activity as well as a useful summary of case law on various procedural issues.
Commission Launches New Online eLeniency Tool
On March 19, 2019, the Commission introduced eLeniency, a new online tool for submitting documents and corporate statements in the