Germany

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).

On March 22, 2023, the Federal Ministry for Economic Affairs and Climate Action (“FMEACA”) hosted an event in which they presented a report commissioned by the FMEACA concerning sustainability goals in competition law in Germany and the EU (“the Report”).[1] 

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. 

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. …

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.  

On November 30, 2022, the German Federal Cartel Office (“FCO”) and the German Federal Network Agency published their joint Energy Monitoring Report 2022.[1]  The report focuses on conditions in the German electricity and gas markets in 2021 and also takes a look at developments in early 2022 which were marked by heavy disruptions in the energy markets following Russia’s war against Ukraine. 

On November 29, 2022, the German Federal Court of Justice (“FCJ”) overturned[1] a decision by the Frankfurt am Main Court of Appeal dismissing a damages action by the insolvent drugstore chain Schlecker.[2]  The FCJ held that, in the case of an anticompetitive exchange of price-related information, there is a factual presumption of causal damage.  The matter has been sent back to the Frankfurt am Main Court of Appeal for a new decision because, in the opinion of the FCJ, it had attached too light weight to a factual presumption. 

After publishing its preliminary finding in February 2022[1], the German Federal Cartel Office (“FCO”) recently prohibited the Deutsche Lufthansa AG group (“Lufthansa”) from terminating longstanding cooperation agreements with Condor Flugdienst GmbH (“Condor”).[2]  Under the cooperation agreements, Lufthansa is obliged to provide feeder flights to Condor’s long-haul passengers.