Merger Control in Germany: Panel Discussion on New Transaction Value Threshold

On 7 June 2018 Dr Katharina Sailer took part in a lively panel discussion with representatives of public and private enforcement and in-house counsel on the topic of merger control in Germany.

The W@Competition Talk was the first event discussing the draft guidelines on the new transaction value thresholds in Austria and Germany with representatives of the two authorities and from private practice. The panel discussion gave interesting insights into the practical challenges to be expected from the new thresholds, the comments to be expected on the draft guidelines and the authorities’ views.

On 9 July 2018, the German Bundeskartellamt and the Austrian Bundeswettbewerbsbehörde published their final joint guidelines on the new transaction value thresholds for the notification of transactions according to German and Austrian merger control rules. The additional transaction value thresholds were introduced in Germany and Austria in 2017 and imply that a transaction has to be notified if (i) the value of the transaction consideration exceeds EUR 400 million in Germany or EUR 200 million in Austria; and (ii) the company to be acquired has significant current domestic activity in Germany or Austria.

Other speakers were Dr. Iris Benedikt-Buckenleib, Counsel, Gleiss Lutz, Sarah Blazek, Senior Associate, Noerr, Dr. Isabel Kehl, Principal Counsel, Legal Competition, Siemens AG, Dr. Daniela Trampert-Paparella, Case Handler, Bundeswettbewerbsbehörde and Jana Zacharias, Bundeskartellamt.

The event was hosted by Noerr LLP in Munich.

CMA publishes Private Healthcare Remittal Final Report

On 5 September 2016 the UK Competition and Market Authority (CMA) published its final report on the Private Healthcare Remittal. The inquiry group confirmed that there is an adverse effect on competition (ACE) in the market for private healthcare service in central London. However, the CMA also found that a divestiture of some of HCA’s hospitals, required previously, would be disproportionate. Other remedies such as the appointment of the Private Healthcare Information Network, which provides independent information on healthcare performance, a crackdown on benefits and incentive schemes for referring clinicians, and the ability for the CMA to review future arrangements for NHS private patient units operated by private hospitals remained in place.

The decision to remit was taken by the Competition Appeal Tribunal (CAT) following complaints by affected parties regarding the accuracy of the econometric analysis, which contributed to the findings and proposed remedies in the original Inquiry. econ-da assisted the CMA in their re-evaluation of this analysis, contributing analyses which were crucial for the CMA’s findings.

Update on development of follow-on damages claims: 2000-2015

An update is now available on my January 2015 overview of the development of follow-on claims after European Commission cartel investigations!

(A scaleable version can be found here.)

In 2015, the Commission concluded four actions against horizontal agreements, imposing a total of 349m€ in fines.  The total is much lower than in the previous years. For example, in each of the years 2012-2014 fines were in excess of 1.6 billion €. In addition, the Commission handed down 14.9 million € in fines against a broker in the YIRD cartel. (In the figure, this has been added to the 2013 proceeding.)

Following appeals, the European Courts adjusted the fines in the CRT (2012), banana (North 2011 and South 2008), pre-stressing steel (2010), heat stabilisers (2009), and chloroprene rubber (2007) cartels. It remains to be seen what happens to the fine in the air freight cartel – for now the full amount of 790 m€ has been overturned by the General Court.

Companies again were active in claiming for damages in the UK. They lodged additional claims following the air freight and car class cartels and first claims were seen following the smartcard and power cable cartels. In addition, I added a claim from 2014 following from the refrigerator compressors cartel, which had been missing before. I could not identify any further follow-on claims from Commission cartel proceedings in any other European country.

 

Development of follow-on damages claims from 2000-2014

The following graph shows all horizontal agreements which have been fined by the European Commission between 2000 and 2014 as well as corresponding follow-on claims by European country:

(Click here for a scalable version of the graph.)

I collected the data on the cartel proceedings from the press releases of the European Commission.  Via a google search corresponding follow-on claims were matched. Due to the nature of such a search, the data on follow-on claims should be treated as indicative only.

The data shows that more follow-on claims have been lodged in the middle of the period compared to the early and later periods. In this period we also see a particularly high number of cases which were pursued in several countries. However, the more recent the period, the less accurately the data likely reflects the actual picture, as information on claims might not yet have surfaced or claims are still in preparation.

The data also show, that the UK, the Netherlands and Germany are the preferred jurisdiction to file a suit. 

Finally, the larger the fine, the more likely a follow-on-claim will be lodged.