Florian Bien

Neues Recht für alte Fälle

New law for old cases – The novel suspension of the Limitation period for antitrust damages claims and the time factor According to Section 33 (5) of the German Act against Restrictions of Competition (GWB), the limitation period to bring an action for damages is suspended if the European Commission or the Competition Authority of any other Member State of the European Union initiates proceedings in respect of an infringement to which the action for damages relates. This provision was introduced in the context of the 7th Amendment to the GWB and entered into force on 1 July 2005. The authors show that the new rule does not apply to damages actions with regard to infringements that happened and had been sanctioned by the competent Competition Authority before the coming into force of the new rule, even if the claim was not already time-barred on 1 July 2005. Such conclusion is made on the basis of an interpretation of the new rule itself in the light of its wording, scheme and purpose. Thus, there is no need for the recourse to alleged general principles governing the transition of prescription rules.

Erleichterungen des privaten Rechtsschutzes im Kartellrecht durch die 8. GWB-Novelle

Facilitations of private antitrust actions by the 8th Amendment to the German Act against Restraints of Competition The article presents the changes regarding the prospects of private legal enforcement by the Eighth Amendment to the German Act against Restraints of Competition (ARC). A major point is the extension of the right to sue of consumer associations and of associations representing the other side of the market. Now these associations are entitled to claim for injunctive relief (Unterlassung) and for abatement or removal (Beseitigung). The author fi nds that consumer associations now have a legal instrument that comes close to an opt-out class action. Furthermore, the legislator of the Eighth Amendment to the ARC clarifi ed that competition authorities may order the refunding of advantages generated by anticompetitive behavior. The author would welcome if competition authorities used this instrument not only in cases of abusive pricing, but also in classic cartel arrangements. 156) EuGH, Urt. v. 6. 6. 2013 – Rs C-536/11 – Donau Chemie.

Der Vollzug untersagter Zusammenschlussvorhaben nach dem Faber/Basalt-Beschluss des Bundesgerichtshofs

The Implementation of a Merger after its Prohibition by the German Federal Cartel Authority ... The Faber/Basalt-Decision of the German Federal Court of Justice The implementation of a merger that has been prohibited by the German Federal Cartel Authority (FCA, Bundeskartellamt) is licit in the following cases: (1) The FCA grants, pursuant to Sec. 41 (2) of the German Act against Restraints of Competition (ARC, Gesetz gegenWettbewerbsbeschr nkungen), an individual and preliminary derogation from the suspension obligation. (2) The FCA overrules its prohibition decision pursuant to Sec. 48 of the Federal Act on Administrative Proceedings (Verwaltungsverfahrensgesetz) and declares the merger compatible with the provisions of the ARC. 3) The Federal Minister of Economics and Technology grants, pursuant to Sec. 42 of the ARC, a permission of the merger (Ministererlaubnis) prohibited by the FCA. (4) The competent court, the Higher Regional Court (Oberlandesgericht) of D sseldorf, annuls the prohibition decision of the FCA pursuant to Sec. 71 (2) of the ARC. Unlike the European Commission under Article 10 (5) of the EU Merger Regulation, the FCA does not have the power to re-examine the merger and to prohibit it again if necessary. (5) According to the Federal Court of Justice (Bundesgerichtshof), the court can grant an individual and preliminary derogation of the suspension obligation under the same (narrow) conditions as the FCA can pursuant to Sec. 41 (2) of the ARC. By its decision in the Faber/Basalt-case, the Federal Court of Justice overruled the opposite decision of the Higher Regional Court of D sseldorf in the Phonak/GN ReSoundcase. In the five cases mentioned above the implementation of the merger is valid. It can not be sanctioned by a fine pursuant to Sec. 81 (2) of the ARC. However, as the merger can still be held incompatible with the provisions of the ARC, the parties run the risk of finally being compelled to dissolve the implemented merger. If the parties implement the prohibited merger without waiting for a preliminary or a definite clearance by the competent authorities the possible sanctions depend whether and for which reasons the prohibition decision of the FCA will be annulled by the courts or a ministerial permission is granted.

Erweiterte Drittbeschwerdemöglichkeiten in der Fusionskontrolle nach dem pepcom-Beschluss des BGH

Extending the possibilities for third parties to challenge the clearance of a merger ... The pepcom decision of the German Federal Court of Justice The merger control procedure often concerns economic interests of third parties such as competitors, customers and suppliers of the merging undertakings. In order to protect the interests of the third parties, the German Cartel Law (GWB) provides namely the third party admittance in the merger control procedure before the competition authority (Beiladung) and the claim of nullity before the court (Anfechtungsbeschwerde). In the past the access to these two remedies was largely randomised. As a matter of fact, the competition authority disposes of a large scope of appreciation when selecting between several interested third parties applying for admittance to the merger control procedure. Since admittance to the merger control procedure was considered as a formal condition to appeal against the clearance of a merger the competition authorities could thus exclude certain third parties from the possibility of legal protection. 564 Florian Bien ZWeR 4/2007 In its landmark decision in the pepcom case the Federal Court of Justice (Bundesgerichtshof) considerably extended the number of possible plaintiffs against the clearance of a merger. The court held that any third party has standing to bring an action against the clearance of a merger provided that the plaintiff has beforehand applied for admittance to the control procedure and that the decision is of direct and individual concern to the applicant. The Federal Court of Justice thus translates the criteria of the action for annulment under Art. 230 (4) EC into German cartel law. The author points out the consequences and possible problems connected with this paradigm change for future merger control procedures before German courts. He particularly addresses and criticizes the tendency in European procedural law to give standing to bring proceedings to persons whose interests are not competition related such as representatives of employees, members of the management bodies, shareholders of the merging undertakings or target undertakings. The article concludes by resuming an alternative proposal which presents the advantage that it not only resolves a number of other dissonances in the existing German antitrust procedural law system but it also defines criteria which allow to distinguish between potential third plaintiffs who should have standing to challenge a merger clearance decision and those who should not have.