Germany’s Federal Cartel Office (FCO) has published two documents summarizing its activities for the public: a more detailed “Activities Report” for the years 2015 and 2016 and the high-level “Annual Report 2016.” These documents confirm that the FCO continues to be a highly active operator in the area of competition law enforcement in Europe.
Dr. Till Steinvorth, partner in our Düsseldorf office, focuses on German and European antitrust law. He has extensive experience in merger control matters and in cartel investigations; and he regularly represents clients before the German competition authority (Bundeskartellamt) and the European Commission.
An additional highlight of Till's practice are antitrust damages claims. He recently brought an action for damages against the members of the German "sugar cartel" on behalf of a manufacturer of sweets and confectionary. This is one of the very first damages actions in Germany where the members of a cartel are being sued to disclose information for calculating the quantum of damages.
Till also pursues international trade and compliance matters, including matters involving foreign investment filings in Germany.
Prior to joining Orrick in 2013, Till worked in the antitrust and competition law group of another international law firm in Düsseldorf, Berlin, Brussels and London.
Till has advised the following clients in cartel cases:
- German furniture manufacturer in a price fixing investigation carried out by the German competition authority
- German media company in a cartel investigation carried out by the German competition authority
- Japanese electronics company in a global cartel investigation
- International construction group in the German competition authority’s sector inquiry into the production facilities for road asphalt
- Car parts supplier in a cartel investigation carried out by the EU
- Manufacturer of precast concrete products in a cartel investigation carried out by the German competition authority
- Pfleiderer AG in in the German chipboards cartel investigation
- International manufacturer in the German radiator cartel investigation
Companies he has advised in merger control cases include:
- Hitachi Chemical Co. on the acquisition of the ISOLITE Group
- Fagerhult on the acquisition of WE-EF
- Paulig AB on the acquisition of control over the Fuchs Group in Germany
- Thales SA on the acquisition of sole control of Thales-Raytheon Systems Company SAS
- Millicom International Cellular S.A. on the sale of its telecommunications business in the DR of Congo
- Soprema SA on the acquisition of sole control of Pavatex Holding AG
- World Triathlon Corporation on the acquisition of the mass participation sports business of Lagardère
- nobilia on the acquisition of FBD International SAS
- GEA on the acquisition of Hilge GmbH & Co. KG
- Adexsi on the acquisition of Eternit Flachdach GmbH
- Telenor in its attempt to merger its Danish operations into a joint venture with TeliaSonera in Denmark
- Millicom International Cellular S.A. on its participation in two joint ventures for online marketplaces in Africa and Latin America
- Conrad Electronic on the acquisition of the online shops of Getgoods.de
- Aurubis on the acquisition of the rolled copper products division of Luvata Oy
- The senior lenders of German cable operator PrimaCom in their acquisition of control over the company after it had filed for insolvency
- Bominflot on the acquisition of the bunker fuel supplier SBI Holding
- Continental AG on its acquisition of the automobile supplier Siemens VDO
- Permira and KKR on their acquisition of the German TV broadcaster ProSiebenSat.1
- MAN AG on its hostile take-over bid for the Swedish truck and bus manufacturer Scania AB
- Vossloh AG on its attempted acquisition of the concrete sleepers division of Pfleiderer AG
- Brambles Industries on the sale of its waste management division Cleanaway to the SULO group
Posts by: Till Steinvorth
Merger notification obligations are changing in Germany and Austria, as new alternative jurisdictional thresholds based on the “transaction value” are being introduced into the respective national regimes, previously solely based on turnover thresholds.
In Germany, the introduction of a new set of alternative thresholds was approved by both chambers of Parliament and will enter into force upon the (imminent) signature by the Federal President.
Even though the new thresholds are being introduced with a view to better control acquisitions of Internet startups, they apply regardless of the economic sector to any high-valued acquisition of undertakings that have a “significant” presence in Germany. READ MORE
For the first time in over a decade, the General Court of the European Union has annulled a European Commission (EC or Commission) decision to block a deal. This is a rare setback for the EC’s merger control program.
The ruling overturns a January 2013 move by the EC to stop global package delivery company, United Parcel Service (UPS), from acquiring a rival, TNT Holdings. The EC’s decision turned on its finding that the transaction would have restricted competition in 15 Member States regarding express delivery of small packages to other European countries. The Commission argued that the transaction would remove one of the four top players in Europe, leaving DHL as the only remaining significant competitor and FedEx as a distant third, with a European network lacking the density and scale to exert a meaningful competitive constraint on a combined UPS/TNT.
In an unprecedented move, the parties to a planned merger transaction have brought an action for annulment against the European Commission’s decision to initiate proceedings even before the proceedings are closed.
Under the EU Merger Regulation (“EUMR”), the Commission’s review procedure is divided into two phases: “Phase I”, which is normally limited to 25 working days, serves to separate unproblematic cases from cases that require a deeper analysis. At the end of phase I, the Commission must either clear a transaction (if it does not find significant competition concerns or if it concludes that it has no jurisdiction) or it must initiate “phase II” (if it has serious doubts as to the transaction’s compatibility with the EU law). While a decision to open phase II does not prejudice the final outcome – the Commission may still clear the transaction – it significantly increases the burden in terms of cost and inconvenience for the merging parties. The opening of phase II normally entails a significant delay of several months, and during that time and until the Commission issues a clearance decision, the parties may not close the transaction.
The European Commission has launched a public consultation to evaluate several aspects of EU merger control for possible revision. Stakeholders are invited to provide feedback until 13 January 2017. A link to the questionnaire can be found here.
The current consultation partly builds on previous efforts to improve and simplify the EU merger control regime, including the so-called “Simplification Package”, which has been in force since January 2014.
The German government has recently published a bill that would significantly amend the criteria for determining whether an M&A transaction is subject to German merger control.
Currently, the applicability of the German merger control rules depends primarily on the revenues of the firms participating in a transaction. A concentration needs to be notified to the German competition authority – the Bundeskartellamt – where all the following three turnover thresholds are met: (i) EUR 500 million worldwide, (ii) EUR 25 million in Germany, and (iii) EUR 5 million in Germany. The 500 million threshold (i) refers to the sales achieved by all of the parties combined in their last completed financial year. The other two thresholds (ii) and (iii) refer to the individual sales of two parties to the transaction (e.g., the acquirer, on the one hand, and the business being acquired, on the other). Where the notification thresholds are met, the parties are subject to a standstill obligation. They must not consummate the transaction until it has been cleared (or is deemed to have been cleared) by the Bundeskartellamt.
Are patients receiving the best care in hospitals? The German competition authority – Bundeskartellamt – has now decided to apply a health check to the German hospitals market.
On May 31, 2016, the German competition authority announced that it was launching a so-called “sector inquiry” into the hospital services market to examine the degree of competition in that sector of the economy.
Many manufacturers of branded goods, who have expressed concerns about the image of their products and worry that these are sold on the cheap, have sought to restrict the use of the Internet by their distributors. In particular, distribution agreements oftentimes include provisions that ban sales via online marketplaces such as eBay and Amazon Marketplace. The legality of such sales bans has repeatedly been questioned by the German competition authority (Bundeskartellamt) and before the German courts. The manufacturer adidas AG, for instance, recently changed its distribution agreements following pressure from the German competition authority to allow the members of its distribution system the sale of adidas sports gear via online platforms. READ MORE