On November 15, 2023, the German Federal Cartel Office (“FCO”) concluded that Microsoft’s investments in and cooperation with OpenAI, Inc. (“OpenAI”) do not constitute a notifiable merger under German law. [1]
Liability of Managing Directors or Management Board Members Involved in Antitrust Violations vis-à-vis the Companies Managed by Them
On July 27, 2023[1], the Higher Regional Court of Düsseldorf ruled on the question of whether a company that has been fined under antitrust law can hold itself harmless by seeking indemnification from the statutory representatives in its managing corporate body. While the Higher Regional Court rejected a claim for reimbursement of the fine imposed on the company by the German Federal Cartel Office and the costs of the fine proceedings, it confirmed the personal liability of the company’s statutory representatives in its managing corporate body for any consequential damages arising from the antitrust infringement, e.g., as a result of claims for damages by third parties.
Once Again, New Powers For The Federal Cartel Office: German Parliament Passes The Government’s Draft Bill On The 11th Amendment To The German Act Against Restraints Of Competition
On July 5, 2023, the German Parliament (Bundestag) passed the Competition Enforcement Act, amending the German Act Against Restraints of Competition (“ARC”) for the 11th time (“11th Amendment”). This comes only two and a half years after the last significant amendment in 2021, which granted the Federal Cartel Office (“FCO”) unprecedented investigative powers.[1] The 11th Amendment once again equips the FCO with additional enforcement powers.
New Toolkit for Intervention Under the German Government’s Draft 11th Amendment (Update)
On May 26, 2023, the first reading of the Government’s amendment to the draft of the Competition Enforcement Act dated April 5, 2023 (“Government Draft 11th Amendment”) was held in Parliament. The Competition Enforcement Act will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time.[1] The Government has proposed further changes to the Federal Ministry for Economic Affairs and Climate Action’s draft published in September 2022 (“Draft 11th Amendment”).[2] This blog post outlines the changes proposed by the government to the Draft 11th Amendment, following on from an earlier blog post on the Draft 11th Amendment (available here).
Getting the Deal Through: Dominance 2023
Cleary Gottlieb lawyers have authored and edited Lexology’s Getting the Deal Through Dominance guide 2023, which addresses the most relevant questions on dominance and market power.
Federal Ministry for Economic Affairs and Climate Action opens consultation on competition and sustainability in Germany and the EU
FCO’s Annual Report 2021/2022: The Digital Economy And Antitrust Enforcement In Times of Crisis
On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1] Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First, the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine. Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis. Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights.
2023 Update: U.S. Antitrust Sets Sail into Uncharted Seas
Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. …
Antitrust Review Episode 7: In Conversation With Andreas Mundt, President of the Bundeskartellamt
In the latest episode of Cleary Gottlieb’s Antitrust Review podcast, host Nick Levy interviews Andreas Mundt, President of the Bundeskartellamt. …
Declaratory Action To Suspend Limitation Periods of Cartelists’ Contribution Claims Dismissed
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.