The German Federal Cartel Office has just published new Guidelines on the Setting of Fines for antitrust law infringements. With these guidelines, the German Federal Cartel Office departs from the method of setting fines used by the European Commission and other national competition authorities in Europe. As a result of the new guidelines, the potential liability for multi-product firms whose infringement concerned only a specific product in their portfolio and whose other products achieve significant turnover may increase.
On 18 June 2013, the Court of Justice of the European Union (CJEU) held that a company that infringed EU competition rules will not escape a fine even if it can claim that it relied on advice given by a legal adviser on the compatibility of its behaviour with national competition rules (Case C-681/11 Bundeswettbewerbsbehörde, Bundeskartellanwalt v Schenker & Co. and Others). In the same ruling, the CJEU also held that relying on the correctness of a decision taken by a national competition authority (NCA) does not protect a company from being found guilty of an infringement of competition law and fined.
On 11 June, the European Commission (“Commission”) published its long-awaited package of proposals on private antitrust litigation. The package is divided into three sets: (1) a Draft Directive on actions for damages (2) a Draft Recommendation on promoting group claims (3) and a Draft Communication and Draft Guidelines on estimating the amount of loss suffered by victims of cartels.
On 11 June, the European Commission (“Commission”) published its long-awaited package of proposals on private antitrust litigation. The package is divided into three sets: (1) a Draft Directive on actions for damages (2) a Draft Recommendation on promoting group claims (3) and a Draft Communication and Draft Guidelines on estimating the amount of loss suffered by victims of cartels.
The European Commission (Commission) is likely to open a formal EU State aid investigation into the German Renewable Energy Source Act. According to the Commission, the Act may have given unlawful advantages to renewable energy producers and energy-intensive companies (those producing chemicals or steel) in Germany. Producers and companies that benefited from the Act are therefore exposed to the risk of the alleged benefit being recovered, which is likely to amount to a figure in at least the tens of billions of Euros.
The European Commission is currently examining whether or not the German Renewable Energy Source Act infringes EU State aid law. The Commission is expected to reach a decision on whether or not to open a formal investigation procedure in autumn 2013, following its summer break.
The German Renewable Energy Source Act aims to support renewable energy by fixing the tariffs that electricity providers, such as E.ON, RWE, Vattenfall or EnBW, must pay for energy from renewable sources, e.g., solar panels or wind turbines. These tariffs are higher than those for energy from traditional sources. The Act also exempts energy-intensive companies, e.g., those producing chemicals or steel, from the EEG surcharge that electricity providers are entitled to charge their customers. These higher tariffs and the EEG exemption could be in breach of EU State aid law and are currently the subjects of a Commission examination.
Should the Commission come to the conclusion that they do infringe EU State aid law, it can order Germany to recover the advantages from the companies that benefitted from these rules. The potential State aid involved is likely to amount in total to a double-digit billion Euro figure.
In a separate but similar case, in March 2013 the Commission opened an in-depth investigation into the exemption of large electricity consumers from network charges in Germany, dating back to 2011. This exemption was financed by the final electricity consumers, who, since 2012, must pay a special surcharge. A German court, recently declared this exemption and the surcharge as unconstitutional and the legal provisions will be changed. The Commission may, however, still conclude that, up until the German court ruling, large electricity customers were benefitting from State aid. It could therefore order Germany to recover the past benefit from these customers, which is estimated at around Euro 300 million for 2012.
These investigations by the Commission expose renewable energy producers, energy-intensive companies and large electricity consumers in Germany to the significant risk of the recovery of the alleged benefit. Such companies are therefore strongly advised to co-operate with the Commission during this examination phase and if a full investigation is launched.
The European Commission has published legislative proposals that would make EU anti-dumping and anti-subsidy instruments more efficient and better adapted to shield EU producers from unfair practices. Specifically, the changes would also protect producers from any risk of retaliation by exporters or exporting countries.
Over 250 of the product requests submitted for tariff suspensions in January 2014 are still being examined by the EU Economic Tariff Question Group. The list of the products for which duty suspensions have been requested is now available on the website of the European Commission’s Taxation and Customs Union Directorate-General.
Businesses can submit their objections to any of the new requests, via the national administrations, by the deadline of 13 June 2013.
Aiste Slezeviciute, a trainee solicitor in McDermott’s Brussels office, also contributed to this article.
The patent wars between large technology companies continue unabated. The Court of Justice of the European Union (CJEU) is set to provide guidance on the antitrust rules when holders of standard essential patents seek injunctive relief.
The European Commission opened the first in-depth investigation into alleged State aid for professional football clubs. This comes after the Commission launched investigations into the financing of arenas. It is likely that other professional football clubs in the European Union, and other professional sports clubs and their related infrastructure, will be investigated by the Commission.
In an era when the vast majority of written communications are made by electronic means, a company’s obligations to cooperate with European Commission officials in an “antitrust dawn raid” extend to the granting of access to all electronically stored data. This is emphasised in the Commission’s revised guidelines on conduct of “dawn raids,” published on 18 March 2013.
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