Germany

On July 10, 2019, the Commission conditionally cleared GlaxoSmithKline’s (“GSK”) acquisition of Pfizer’s Consumer Health Business following a Phase I review.[1] The transaction forms part of GSK’s and Pfizer’s plan to contribute their respective consumer healthcare businesses to a new venture, over which GSK will have sole control.

On June 21 and July 9, 2019, the FCJ annulled two judgments of the DCA relating to the cartels in the confectionary[1] and roasted coffee[2] sectors due to procedural flaws. In both cases, the DCA had previously increased cartel fines set by the FCO. The FCJ referred both cases back to another cartel division of the DCA for a new hearing and ruling. Whether this, however, will result in an actual reduction of the fines remains to be seen.

On July 4, 2019, France and Germany, joined by Poland, issued a joint call to modernize European competition rules (“Joint Statement”).[1] This follows the publication in February 2019 of a Franco-German Manifesto for a European industrial policy to foster the creation of European champions.[2] The Joint Statement scales back some of the Manifesto’s far-reaching ideas.

On July 4, 2019, the Paris Court of Appeals reduced the fines imposed by the FCA in the “flour” case from €242.4 million to €96.1 million.[1] The Court reduced the fines imposed on the millers while upholding the FCA’s findings on the merits. The total fine reduction was justified by (i) the shorter duration of the infringement for two millers; (ii) the ability to pay for five millers; and (iii) the existence of a price regulation until 1978, which limited the cartel’s impact on the economy.

On July 1, 2019, the FCO cleared EDEKA Zentrale AG & Co. KG’s (“EDEKA”) 100% acquisition of the Handelshof Management GmbH (“Handelshof group”).[1] The FCO found that the merger did not significantly impede effective competition in the food (and related non-food) product wholesale and procurement markets.

On June 27, 2019, the German Federal Cartel Office (“FCO”) published its Annual Report 2018 as well as its biennial Activity Report 2017/2018.[1] Andreas Mundt, the President of the FCO, pointed out that the FCO has a clear digital agenda with a focus on the digital economy and the protection of consumer rights, which it will continue to pursue this year.

On June 11, 2019, Nustay, a Danish online booking agency, filed a complaint with the Commission against Expedia and Booking.com, alleging a breach of Articles 101 and 102 TFEU. The complaint centers on parity clauses in online hotel booking. In 2015, both Expedia and Booking.com agreed with the Danish Competition Authority to remove wide price-parity clauses from their contracts with hotels.[1] Nustay alleges that these two companies have de facto re-introduced these clauses through certain commercial practices.

On June 4, 2019, the Düsseldorf Court of Appeals (“DCA”) annulled the FCO’s 2015 decision prohibiting hotel booking platform operator Booking Holdings (“Booking.com”) from using narrow most favored nation (“MFN”) clauses.[1] The DCA’s decision aligns the German position with that of other European national competition authorities (“NCAs”). However, new causes of divergence—stemming from legislative interventions—are already emerging.

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.