On September 10, 2019, the General Court annulled a European Commission decision concerning the Ostseepipeline-Anbindungsleitung (“OPAL”) gas pipeline for breaching the principle of energy solidarity. The decision approved raising a cap on Gazprom’s use of the pipeline.
DCA Picks Apart FCO’s Facebook Decision in Interim Proceedings
On August 26, 2019, the Düsseldorf Court of Appeal (“DCA”), in an interim decision, suspended the German Federal Competition Office’s (“FCO”) prohibition decision against Facebook, Inc. (“Facebook”), expressing “serious doubts” about its legal basis.[1] This decision marks not only the second major setback for the FCO after the DCA’s annulment of the FCO’s Booking.com decision on price parity clauses earlier this year.[2] It might also constitute a major setback for the FCO’s efforts to act as a leading enforcer of competition law in the digital economy.
Nomination of Supervisory Board Member Not Gun Jumping
On August 26, 2019, the DCA dismissed a claim based on allegations of gun jumping against the appointment of a new member of Ceconomy AG’s (“Ceconomy”) supervisory board.[1]
Federal Minister of Economic Affairs Grants Ministerial Authorization for Miba and Zollern
On August 19, 2019, the German Federal Minister of Economic Affairs, Peter Altmaier, applied the rarely used ministerial right[1] to overrule the FCO’s prohibition of a joint venture between Miba AG (“Miba”) and Zollern GmbH & Co. KG (“Zollern”) and cleared the transaction subject to commitments.[2] The Monopolies Commission, an advisory body to the German federal government, had previously issued a non-binding recommendation to reject Miba’s and Zollern’s request for ministerial clearance.[3]
Monopolies Commission Calls for Higher Quality Train Services and More Competition in the Railway Sector
On July 25, 2019, the German Monopolies Commission presented its 7th Sector Report on the German Railway market, assessing quality and competition in the industry.[1]
Commission Fines Qualcomm €242 Million In Its First Predatory Pricing Decision In Almost Two Decades
On July 18, 2019, the Commission fined Qualcomm €242 million for abusing its dominance in the global market for broadband chipsets by selling below cost to “strategically important” customers, to force a competitor out of the market.[1] This is the first time in 16 years that the Commission has fined a company for predatory pricing after the Wanadoo decision of 2003.[2]
Vodafone Grants Telefonica Cable Access in Germany To Secure Clearance of Liberty Global Acquisitions
On July 18, 2019, the Commission conditionally approved Vodafone’s acquisition of Liberty Global’s cable networks business in Czech Republic, Hungary, Romania, and Germany, following a Phase II review.[1] This case is the latest in a wave of consolidation across the EEA’s telecommunications sector (such as Liberty Global/Ziggo, Vodafone/Liberty Global/Dutch JV, and Altice/PT Portugal).[2]
Amazon Changes Business Terms Following FCO Investigation
On July 17, 2019, the FCO terminated its abuse proceedings into Amazon.com, Inc.’s (“Amazon”) German online marketplace, Amazon.de, after Amazon had committed to making several changes to its business terms towards sellers on its marketplace. The commitments apply not only to Amazon’s business terms in Germany, but also worldwide on all its marketplaces.[1]
FCO Blocks Waste Recycling Deal
On July 11, 2019, the FCO prohibited waste disposal company Remondis SE & Co. KG’s (“Remondis”) acquisition of the dual system for packing recycling DSD – Duales System Holding GmbH & Co KG (“DSD”).[1]
DCA Dismisses MVV’s Appeal to Prevent EnBW’s Blocking Minority
On July 10, 2019, the DCA rejected German energy supplier MVV Energie AG’s (“MVV”) appeal against the FCO’s clearance decision, allowing its competitor EnBW Energie Baden- Württemberg AG (“EnBW”) to increase its stake to a minority shareholding of 28.76% in MVV.[1]