Germany

On December 2, 2020, the Regional Court of Bonn dismissed BayWa AG’s (“BayWa”) action for state liability against the Republic of Germany and the FCO for a breach of the constitutional prohibition of discrimination in the context of the FCO’s leniency program.[1]

On November 25, 2020, after an in-depth investigation, the FCO approved the acquisition by Mann Mobilia Beteiligungs GmbH (part of the XXXLutz Group) of 50% of the shares in Möbel Management Holding GmbH & Co. KG and Roller GmbH & Co. KG (part of the Tessner Group), subject to the divestiture of 23 furniture outlets.[1] The FCO’s clearance only relates to the sales side of the transaction, i.e., the relationship between furniture retailers and consumers, whereas on November 30, 2020, the European Commission unconditionally cleared the transaction with respect to the procurement side, i.e., the relationship between furniture retailers and manufacturers.[2]

On November 20, 2020, at the request of Sisvel International Group (“Sisvel”), the Federal Court of Justice (“FCJ”) granted a preliminary injunction against Chinese mobile phone manufacturer Haier Corporation Group (“Haier”).[1] The injunction is another victory for Sisvel in its patent disputes with Haier following a preliminary injunction issued in May 2020.[2] The FCJ used the recent decision as an opportunity to further elaborate on the obligations of patent holders and potential patentees under the Huawei/ZTE jurisprudence of the Court of Justice of the European Union (“CJEU”).[3]

On October 27, 2020, the FCO decided that it had no objections to the planned joint venture and cooperation between the German newspaper publishers Süddeutsche Zeitung GmbH (“SZ”) and Frankfurter Allgemeine Zeitung GmbH (“FAZ”) relating to the joint commercialization of their national advertising inventory.[1]  Under German law, and in contrast to EU law, potential coordination effects between the parent companies are not already assessed as part of the merger control process relating to the creation of the joint venture, but are reviewed separately under the restrictive practices provisions of the ARC.[2]

On October 7, 2020, the Frankfurt am Main Court of Appeals found the top-tier sports association for beach volleyball (Deutscher Volleyball-Verband, “DVV”) liable for abusing its dominant position by discriminating the plaintiffs, two female professional volleyball players.[1] The plaintiffs were awarded USD 17,000 in damages reflecting the prize money the plaintiffs missed out on during that period of time.

In October 2020, the Federal Cartel Office (“FCO”) initiated an investigation against Amazon’s and Apple’s agreement to exclude non-authorized dealers from selling Apple products on the Amazon Marketplace.[1] While the FCO has not published a press release about the proceedings yet, the investigation is expected to focus on whether combatting product piracy justifies this practice.

On September 23, 2020, the FCJ overturned a judgement by the DCA in which the Essen Transportation Authority brought a follow-on damages action against members of the so-called Rail Cartel (“Schienenkartell”).[1] It referred the case back to the DCA and provided further guidance to the DCA in relation to the applicable burden of proof as well as the scope of the passing-on defense.