Philipp Werner

In Short The Situation : The European Commission has launched its largest ever stimulus package to support recovery of EU economies from the COVID-19 pandemic’s unprecedented economic and social disruption. Each EU Member State must submit a recovery plan and funding requests for Commission (...)

In Short The Situation : An investigation launched in 2016 by the German competition authority was meant to determine if Facebook was abusing its market position with its imposition of "misleading" data protection policies. The Result : It was concluded that Facebook’s data processes did abuse (...)

This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. _ The Situation : Market-dominant and powerful companies in Germany are subject to a number of rules that are significantly broader and stricter than the (...)

The European General Court’s ("GC") decision relates to a complaint filed with the European Commission ("EC") by Contact Software, a German software supplier of Product Data Management ("PDM"). Contact Software alleged an abuse of dominance by Dassault Systèmes and Parametric Technology Corp., as (...)

In Short The Situation : On July 6, 2017, the European Court of Justice ruled that a Member State could not request reimbursement of aid that had been granted to an undertaking in compliance with the General Block Exemption Regulation solely because that undertaking later became the subject of (...)

The German Federal Cartel Office (Bundeskartellamt or "FCO") has published guidance on the requirements placed on remedies in merger control and their implementation. Remedies are an important instrument in merger control practice. They can enable the clearance of a merger under conditions and (...)

In April 2017, the European Commission ("Commission") published a tender offer seeking an assessment of the EU market for loan syndication and possible implications under EU competition rules. The successful candidate will draft a report providing an overview of the market and the relevant (...)

In Short The Situation : The European Commission has launched a new tool that will allow individuals to anonymously report anticompetitive conduct for the first time. The Impact : The Commission’s new access to anonymous inside information could increase the risk of exposure for companies (...)

After the opening decision for a formal state aid review has been issued, German courts may in principle not deviate from the Commission’s preliminary assessment of the state aid character. In cases where courts have doubts about the preliminary assessment, they must request the Commission’s (...)

The German Federal Administrative Court (“BVerwG”) ruled that administrative courts are obliged to independently review the question, whether an economic aid meets all the requirements of a notifiable State aid within the meaning of Article 107 TFEU. This obligation is not limited by the fact (...)

The Federal Administrative Court (Bundesverwaltungsgericht) ruled that Article 108(3), Sentence 3 TFEU obliges national courts to interpret and apply the concept of State aid under Article 107(1) TFEU autonomously and comprehensively. According to the Federal Administrative Court, national (...)

The case before the Oberlandesgericht, (Higher District Court of Düsseldorf (OLG Düsseldorf)) related to a damages claim brought by Phonak against the Federal Republic of Germany based on the German rules of state liability (Section 839(1)(1) of the German Civil Code (BGB) in conjunction with (...)

In its Viscose fibres judgement, the Bundesgerichtshof (Federal Court of Justice (BGH)) held that turnover from goods delivered to a production facility in Germany constitutes domestic turnover, even if the actual decision to buy these goods was taken by the central purchasing organisation of a (...)

In its recent judgment in Land Burgenland (Joined Cases C-214/12 P, C-215/12 P and C-223/12 P) the Court of Justice of the European Union (CJEU) has confirmed that compatible State aid granted to an undertaking in the past must not be taken into account in the context of the Market Economy (...)

The Cour de cassation, France’s highest court for judicial matters, rendered a judgment on 15 January 2013 in a case involving Jaguar’s distribution agreements in France. The judgment follows an earlier ruling on the matter by the Court of Justice of the European Union (CJEU), from which the Cour (...)

In the Bundeskartellamt’s decision in Lenzing AG / Kelheim Hygene Fibres GmbH, in which it prohibited the creation of a monopoly in the viscose fibres market, the Bundeskartellamt clarified how it deals with the geographic allocation of turnover, especially in relation to the assessment of (...)

The Bundeskartellamt cleared the merger between Fresenius Kabi and Fenwal following its Phase II investigation. The merger concerned the healthcare sector and, in particular, the market for blood transfusion technology and the manufacture of products used in blood collection, filtration and (...)

EU Commission Can Bring Follow-On Actions for Damages on Behalf of the European Union in Cartel Cases* On 6 November 2012, the Court of Justice of the European Union (CJEU) ruled that the European Commission was entitled to represent the European Union in an action for damages before national (...)

The European Commission published on 17 October 2011 its new guidelines for best practices during antitrust procedures. The guidelines cover the main proceedings concerning alleged infringements of Articles 101 and 102 of the Treaty on the Functioning of the European Union (cartel (...)

GERMAN FEDERAL CARTEL OFFICE LAUNCHES SECTOR ENQUIRY INTO FOOD AND LUXURY FOOD RETAIL MARKET* The German Federal Cartel Office (FCO) announced yesterday that it has launched a sector inquiry into food retailers. The FCO will focus its study on foodstuffs and luxury foodstuffs without (...)

The European General Court found on 15 September 2011 that the European Commission can only rely on the presumption of liability of a parent company for a wholly owned subsidiary if it included an adequate statement of reasons in its decision explaining that it indeed relied on that presumption (...)

On 24 August 2011, the Commercial Court in Paris ordered the French competition authority, the Autorité de la concurrence (Autorité), to disclose documents relating to the settlement of an antitrust investigation in the context of a private damages action. This order could significantly (...)

COOPERATION BETWEEN COMPETITION AUTHORITIES IN MERGER REVIEW IN THE EU* The European Commission started a public consultation on a draft document which seeks to establish best practices on cooperation between national competition authorities (NCAs) in the EU when reviewing mergers. Although (...)

This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 17 February 2011, the European Court of Justice (ECJ) – on a reference for a preliminary ruling by the Stockholm District Court (SDC) – (...)

Under certain circumstances, undertakings can demand the recovery of state aid granted to their competitors in violation of the prohibition of implementation under European law in Art. 108 para. 3 sentence 3 TFEU. The BGH considered the implementation ban to be a protective law within the (...)

THE PROHIBITION OF IMPLEMENTATION UNDER STATE AID LAW IN ARTICLE 108(3)(3) TFEU IS A PROTECTIVE LAW IN FAVOUR OF THE COMPETITORS OF THE AID RECIPIENT ++Tags+++Tags+++Tags+++ German Federal Court, Flughafen Frankfurt-Hahn, I ZR 136/09, 10.2.2011 (German) Under certain circumstances, (...)

The Federal Administrative Court has ruled on the conditions under which the levy of a special-purpose association can be regarded as aid within the meaning of European law. According to its judgement of 16 December 2010, a levy imposed by a special-purpose association exclusively to compensate (...)

The Federal Fiscal Court (Bundesfinanzhof) clarified that it was prevented from re-assessing the lawfulness of the Commission decision ordering recovery of aid, and in particular its finding that the relevant tax provisions involve State aid. It ruled that Germany’s obligation to recover (...)

The Federal Court of Justice has ruled that the obligation to recover aid is only effectively and immediately implemented if insolvency claims are treated as non-subordinated liabilities. Accordingly, it found that the primacy of EU law must lead to the non-application of a statutory provision (...)

The Berlin-Brandenburg Higher Administrative Court has ruled that a Commission’s negative decision ordering the recovery of aid may be implemented and enforced unilaterally by German authorities by means of an administrative act (i.e. based on public law) even if the aid were granted on the (...)

The Federal Constitutional Court (Bundesverfassungsgericht) rejected the constitutional complaint (Verfassungsbeschwerde) filed against the judgment of the Federal Administrative Court (Bundesverwaltungsgericht) of 23 April 1998, 3 C 15/97 – Alcan. It held that this judgment and the CJEU’s (...)

The Federal Administrative Court (Bundesverwaltungsgericht) ruled that if a funding decision obliges its addressee to forward the funding to a third party in accordance with its intended purpose and to provide a corresponding declaration of commitment, a withdrawal decision ordering the (...)

The Federal Administrative Court (Bundesverwaltungsgericht) implemented guidance received from the CJEU and confirmed that national procedural rules and safeguards (such as time limits for the withdrawal of illegal administrative acts, the protection of legitimate expectations, the principle of (...)

The German Federal Administrative Court decided, that the withdrawal of aid due to a violation of Community law is in principle governed by national law. The beneficiary’s trust in the existence of the administrative act is generally outweighed by the public interest in the withdrawal, if the (...)