On February 10, 2021, the FCJ declared liquidated damages clauses for cartel damages of up to 15% admissible in its sixth ruling in connection with the so-called “rail cartel”.[1]
FCJ Finds German Courts Have Jurisdiction Over Injuction for Abuse of Dominant Position
On February 10, 2021 the FCJ annulled a decision by which the Schleswig Court of Appeal (“SCA”) had denied jurisdiction over the injunction claims of Hotel Wikingerhof’s (“Wikingerhof”) against the Dutch hotel booking platform operator Booking.com and remanded the case back to the SCA.[1]
Hanover Court Dismissed Claims in Sugar Cartels for Lack of Standing
On February 1, 2021, the Hanover Regional Court dismissed a claim brought by special purpose vehicle Retail Cartel Damage Claims SA (“CDC”) against sugar manufacturers Nordzucker AG, Südzucker AG and Pfeifer & Langen GmbH & Co. KG, on the basis that the CDC had no standing to sue.[1]
FCO Safeguards Competition in Mobile Communication Cooperation
On January 19, 2021, the FCO announced that it would closely monitor cooperation agreements between Deutsche Telekom, Vodafone, and Telefónica
The Nuremberg-Fürth Regional Court Dismisses a Damages Action Against the Immunity Recipient in the Confectionary Cartel
On January 14, 2021, the Nuremberg-Fürth Regional Court dismissed an action for damages against a confectionery manufacturer, which participated in an information exchange in the so-called “Four Party” discussion group.[1]
FCJ Confirms: German Merger Control Test Differs From European Test
On January 12, 2021, the FCJ dismissed CTS Eventim’s appeal against a decision of the DCA [1], thus confirming the FCO prohibition of CTS Eventim’s acquisition of Four Artists.[2] In its landmark decision, the FCJ clarified that under German merger control law, any strengthening of a dominant position, even if it is not appreciable, can constitute a significant impediment to effective competition (“SIEC”) and serve as grounds for prohibiting a transaction.
FCO Conditionally Clears Acquisitions in the German Food Retail Sector
Kaufland/Real and Globus/Real
On December 22, 2020, the FCO cleared the acquisitions of up to 92 “Real” retail stores from SCP Retail S.à.r.l. (“SCP”) by Kaufland Immobilien & Co. KG and Kaufland Dienstleistung GmbH (“Kaufland”)[1] and of up to 24 stores by Globus Holding GmbH & Co. KG (“Globus”).[2] The clearance of Kaufland’s acquisition was subject to Kaufland foregoing the acquisition of nine of the originally planned 101 stores to address concerns in individual local sales markets. Further, SCP undertook to sell Real stores with a total procurement volume of € 200 million p. a. to medium-sized retailers.
Discovery In Private Follow-On Cartel Litigation
On December 17, 2020, the Hanover Regional Court ordered the disclosure of the confidential version of an infringement decision of the EC (the “Infringement Decision”).[1] It is the first decision granting access to a confidential version of a previously nondisclosed decision by a competition authority. Other courts have shown a tendency to limit the scope of the disclosure rights.[2]
FCO Opens Additional Investigation of Facebook Practices
On December 10, 2020, the FCO initiated an investigation against Facebook for requiring users of its Oculus virtual reality glasses to also have a Facebook account.[1]
FCJ Provides Guidance on Competition Infringements in The Railway Sector
On December 8, 2020, the FCJ overturned a decision of the DCA concerning an increase in cancellation fees for track access charges imposed by Deutsche Bahn AG (“DB”) between 2008 and 2011. The plaintiff demanded the repayment of a partial amount of the cancellation fees paid following a price increase of 150%. The FCJ referred the case back to the DCA.[1]