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Focus on Regulation

Tag Archives: antitrust

Closing the so called “Sausage gap” – Cartel fine procedures after the 9th amendment of the German Act against Restraints of Competition (GWB)

With the amendments to the cartel fine procedure introduced by the 9th amendment of the GWB the legislator intends a harmonization with EU-law and significantly extends the liability for cartel fines.

With the 9th amendment of the GWB, the legislator again attends to the closing of the so called “sausage gap”. This sanctioning gap in the German competition law derives its name from the sausage manufacturer Tönnies who was able to evade a three-digit million fine imposed by the Federal Cartel Office (FCO) by a clever corporate restructuring of his sausage empire. The essential assets of the legal entities responsible under antitrust law were transferred to other group companies and the legal entities ceased to exist.

Germany suggests ramping up regulation of Digital Platforms by establishing a “Digital Agency” with a robust antitrust mandate

Will Germany establish a “Digital Agency” to monitor compliance with competition law rules in digital markets? Will a German “Digital Antitrust Enforcer” become a role model for a European protectionist approach against American and Asian platform providers?

The German Federal Ministry for Economic Affairs and Energy seems to see a pressing need for regulation in digital markets. The White Paper “Digital Platforms”, published on the 20 March 2017, provides an outlook on possible forms of digital regulatory policy in Germany and potentially also in Europe. Of particular interest from a competition law perspective is the proposal to establish a new “Digital Agency”.

Outlook for Disgorgement Remedies in the Trump Administration

With the departure of now former Chairwoman Edith Ramirez earlier this month, among the most discussed vacancies in the new administration these days is the post of permanent Chair of the Federal Trade Commission. According to reports, one leading candidates is Acting Chairman Maureen Ohlhausen, and her selection could also have significant implications for FTC

A Bigger Carrot: Commission Official Signals Availability of Larger Fine Discounts For Cooperation in Abuse Cases

In September 2016, the European Commission granted a 30% fine discount to Altstoff Recycling Austria for cooperating with an investigation into its alleged abuse of a dominant position in the Austria waste management market (see our previous post here). The discount was granted on the basis of Paragraph 37 of the 2006 Fining guidelines, which allows

Cartel damages 2.0 in Germany – the draft bill has arrived

After the implementation of the new EU Directive on antitrust damages actions into German law it will be much easier for cartel victims to pursue their claims. The position of indirect customers of cartelized products or services will be strengthened, the limitation period will be extended and most of all the German legal system will see the implementation of a German version of disclosure.

Belgian endives on the frontline for price fixing by farmers

Belgian endives are a divisive vegetable: their bitterness delights some but repulses others. And even amongst Belgian endive enthusiast you’ll find some that prefer them raw – to maintain their crispness – while others like them cooked so that their bitterness comes out even more. But Belgian endives are no longer the exclusive battleground of

Cartel facilitators can face hefty EU fines – what are the implications for consultancies, market research organisations, brokers and other intermediaries?

The European Court of Justice (ECJ) has confirmed that the conduct of a consultancy firm can be caught by the EU prohibition of agreements or concerted practices restricting competition (Article 101 of the Treaty of the Functioning of the European Union (TFEU)), even where that firm is not active on the cartelized market but where

State Boards Seeking an Antitrust Pass? FTC Explains What They Need to Know

A Supreme Court decision from February ruled that state regulatory boards run by “a controlling number” of “active market participants” can qualify for an antitrust exemption only if they are “actively supervised” by the state. But the Court left the content of those key terms vague, leaving states to wonder about the degree of antitrust scrutiny their regulatory boards will face. The FTC staff last week issued guidance on how they believe the Supreme Court’s decision should be implemented.

Antitrust in China’s pharma sector – Bengbu action following big-bang reform

On 26 August 2015, the National Development and Reform Commission (NDRC) made public its first antitrust enforcement decision in the pharmaceutical sector since launching the drug pricing reform earlier this year. Although the target of this enforcement action was a local government entity, pharmaceutical companies should expect continued antitrust intervention in parallel with the implementation

DOJ Continues to Focus on FRAND Negotiations

Citing a recent spike in litigation over fair, reasonable, and non-discriminatory patent royalties as evidence that the current system is “not working very well,” a senior U.S. Department of Justice (DOJ) official on Tuesday said that there need to be clearer rules for setting FRAND rates. According to Renata Hesse, the Deputy Assistant Attorney General for Criminal

European Commission Initiates Guidance on Antitrust Rules in the Agricultural Sector

The enforcement of antitrust rules in the agricultural sector has been a taboo in Brussels for decades – and for good reason. Spending on the so-called Common Agricultural Policy (CAP) represented the vast majority of the EU budget until the beginning of the 21st century and the agricultural sector could consequently hardly be seen as open to the principles of the market economy. But things have slowly started to change with the creation of the World Trade Organisation and the reduction of farm subsidies in recent years.

U.S. Department of Justice’s Antitrust Division announces criminal penalties from cartel prosecutions

Last week, the U.S. Department of Justice’s Antitrust Division announced that criminal penalties from cartel prosecutions in fiscal year 2014 (ending September 30) reached $1.861 billion. This was, by far, the largest ever annual total for the Division. In addition, the Antitrust Division obtained jail terms for 21 individual defendants, with an average sentence of 26 months,

Federal Judge Limits Antitrust Scrutiny of Pharmaceutical Reverse Payments to Settlements Involving Monetary Transfers

Recently, a federal judge in the U.S. District Court for the District of New Jersey held that only patent settlements involving a reverse monetary payment will be subject to antitrust scrutiny under the framework articulated by the Supreme Court last year in FTC v. Actavis. In affirming its earlier ruling dismissing the direct purchaser complaint,

Judge Rules Non-Reportable, Consummated Merger Violates U.S. Antitrust Law

One year since the filing of the lawsuit, and 18 months since the merger closed, a U.S. federal judge declared on 8 January 2014 that Bazaarvoice violated Section 7 of the Clayton Act by acquiring its main rival, PowerReviews. The U.S. Department of Justice (DOJ) challenged the US$168 million deal even though PowerReviews was too

Cooperation between the EU and India on antitrust matters

On 21 November 2013, the European Commission signed a Memorandum of Understanding (“MoU“) with the Competition Commission of India. A copy has just been published on the European Commission’s website. The aim of the MoU is to further strengthen cooperation between the two parties in the area of antitrust enforcement.

The Global Antitrust Corner – Latest Developments in U.S. and EU Cartel Damages Claims

On 9 December, we are hosting a 60-minute webcast featuring Hogan Lovells lawyers from London, Munich, and Washington, D.C. who will address recent developments for businesses facing or contemplating potential antitrust damages claims in the United States and Europe, including the United Kingdom and Germany, as major jurisdictions for cartel damages claims. This is the fifth program in

UPDATE: Cartel Whistleblower Bill One Step Closer to Law as Full Senate Passes Bill

Yesterday, the Senate unanimously passed a bill aimed at preventing retaliation against whistleblowers who report criminal antitrust violations. The bill, which provides a civil remedy for retaliation against individuals who cooperate with Department of Justice investigations relating to their employer’s criminal price-fixing or bid-rigging activity, was reported out of committee on October 31 — just five

Senate Judiciary Committee Approves Bill Adding Whistleblower Protection in Antitrust Cartel Investigations

On 31 October 2013, the Senate Judiciary Committee approved a bill aimed at preventing retaliation against whistleblowers who report criminal antitrust violations. The bill amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA)[1] by adding whistleblower protections for anyone who provides the federal government information regarding, or otherwise assists an investigation or

House Judiciary Subcommittee Hears Testimony on the Impact of the Affordable Care Act on Health Care Competition

A mere two weeks before the health insurance marketplaces created by the Patient Protection and Affordable Care Act (“ACA”) are scheduled to open for enrollment, the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Committee on the Judiciary heard testimony on the effect of the ACA on health care competition. Representatives from