Germany

On September 2, 2020, the German Federal Cartel Office (“FCO”) published its Annual Report 2019/2020 (“Annual Report”) which includes an update on the FCO’s activities in the first half of 2020.[1]

In August 2020, the FCO published the results[1] of its investigation into the effect of narrow price parity clauses on online sales.  Narrow price parity clauses restrict suppliers from offering their products or services at lower prices or more favorable conditions in certain sales channels.  In contrast, wide price parity clauses restrict suppliers from offering their products or services at lower prices or with more favorable conditions anywhere else.

On July 29, 2020, the Monopolies Commission published its Biennial Report XXIII.  The Monopolies Commission makes three main recommendations to strengthen the German and European competition regimes.[1]

On July 9, 2020, the Federal Cartel Office (“FCO”) launched a sector inquiry on the provision and marketing of public charging infrastructure for electric vehicles.[1]  While the market is still in its early phase and emerging, the FCO received multiple complaints about prices and conditions at charging stations.

On July 8, 2020, the Dortmund Regional Court for the first time considered a group liability of all companies forming an economic unit for cartel damages.[1]  The court concluded—in line with the Court of Justice of the European Union’s (“CJEU”) recent case law—that the broader notion of an “undertaking” (in the sense of the economic unit) under EU law also applies in damages actions under national law.

On July 6, 2020, the FCO approved the acquisition of online dating platform provider The Meet Group Inc. (USA), active on the German market through its mobile dating app Lovoo GmbH (“Lovoo”), by the ProSiebenSat.1 Media SE (“ProSiebenSat.1”) group, which owns online dating platforms from Parship and Elite Partner.[1]

On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision.[1] The FCJ disagreed with the FCO’s determination of an abuse based on a violation of data protection law, but instead examined Facebook’s data usage exclusively under competition law.

On May 19, 2020, the Federal Court of Justice (“FCJ”) overturned a judgment of the Munich Court of Appeal in one of the numerous cartel follow-on damages actions brought against members of the so-called Rail Cartel (“Schienenkartell”), this time by the Munich Transportation Authority.[1]  The FCJ once more confirmed its decisional practice in the case of quota and customer protection cartels, according to which there can be no prima facie evidence that damages were incurred and/or whether individual purchase orders were affected by the cartel.[2]  The decision had to be reversed, for the Munich Court of Appeal had based its decision on such prima facie evidence.  Of particular interest is the FCJ’s reasoning on two other issues:

On May 12, 2020, the Frankfurt am Main Court of Appeals found drugstore chain Anton Schlecker e.K. i.I.’s (“Schlecker”) insolvency estate was not entitled to cartel follow-on damages.[1] In the Court of Appeals’ view, Arndt Geiwitz, Schlecker’s insolvency receiver acting on behalf of the estate, did not prove the estate incurred damages as a result of the cartel’s information exchange.