Germany

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.

On May 7, 2019, after an in-depth investigation, the FCO prohibited Heidelberger Druckmaschinen AG’s acquisition of sheet folding machine manufacturer MBO Maschinenbau Oppenweiler Binder GmbH & Co. KG (“MBO Group”).[1] Based on an extensive market investigation, with a particular emphasis on customer feedback, the FCO found that the merger would have created a dominant position for Heidelberger Druckmaschinen AG and significantly impeded competition in the market for the manufacture and distribution of sheet folding machines for industrial printing processes.

On April 11, 2019, the Federal Cartel Office (“FCO”) published its final report on its sector inquiry into comparison websites.[1] This inquiry marked the first time that the FCO had analyzed a sector on the basis of its consumer protection competencies that have only recently been created. It clearly emphasized the agency’s ambition to expand its enforcement authority also into this area. Overall, the FCO came to the conclusion that several comparison portals infringed consumer rights in particular by providing misleading or incomplete information to consumers.

On April 5, 2019, the DCA annulled a €62 million fine that the FCO had imposed on Carlsberg Deutschland GmbH (“Carlsberg”) in 2014 for its participation in price-fixing agreements in 2006 (draught beer) and 2008 (draught and bottled beer) in Germany.[1] In addition to Carlsberg, the FCO had fined ten other breweries, one trade association and 14 individuals in the total amount of €338 million (including Carlsberg’s fine).[2]

On April 4, 2019, the Stuttgart Court of Appeals confirmed the Stuttgart Regional Court’s judgment that found Daimler liable for damages as a result of its participation in the Trucks Cartel.[1] In particular, the Stuttgart Court of Appeals held that the limitation period for damages arising from the Trucks Cartel had been suspended as of the European Commission’s (“EC”) dawn raid of the defendant’s premises in 2011.

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.

On March 13, 2019, Spotify filed a complaint against Apple with the European Commission, alleging a breach of Article 102 TFEU. The complaint touches on many of the issues surrounding digital platforms that have been a key focus for the Commission in recent years. In particular, there are parallels with the allegations in Google Shopping, that Google abused its platform dominance in general search to benefit its comparison shopping service.