Looking back to the competition law year 2019, there is no denying that competition policy faces many new challenges: digital platforms and networks, algorithms, sustainability, etc. In my view, it is remarkable that despite all these developments there is a widespread consensus among competition law practitioners that we do not have to re-invent competition law. Rather, the continuous evolution of legal frameworks and the ongoing development of case-law provide fitting answers to the challenges lying ahead.
Partly based on personal involvement, I would like to focus on cartel fine procedures and illustrate my point with two examples from this area – so behind today’s calendar flap you find two pieces of candy!
1) Evolution of legal frameworks
At the beginning of 2019, the entry into force of the ECN+ Directive (EU) 2019/1 marked a major step in the evolution of national competition law frameworks. This applies to cartel fine procedures in Germany, too. Although the Draft Proposal for the 10th amendment of the German competition act has not been officially published yet, based on the sneak preview (see here) it seems fair to state that the proposed amendment will be an important step for ensuring effective protection of competition: clarification of the factors that have to be taken into account when setting fines (§ 81d); improved investigative tools (§ 81m – requests for information); a slight but important shift in the institutional balance (§ 82a – strengthening the role of the Bundeskartellamt before national courts); and so forth. This legislative project exemplifies progress made in small but determined steps.
2) Development of case-law
Taken together, the continuous development of case-law pushed forward by a vast number of decisions might well be the most remarkable driving force in competition law. Pars pro toto, I would like to highlight two recent cases that will provide guidance on an issue of great practical importance: the duration of competition infringements.
On 21 May 2019, the German Federal Court of Justice (Bundesgerichtshof) handed down its decision in the wallpaper cartel case. The court held that competition infringements are only terminated when they no longer produce economic effects. The consequences may be far-reaching. For example, as price fixing affects the general price level it does not matter whether the products concerned are actually ordered. It is sufficient that they are on offer.
In parallel, a preliminary ruling proceeding still pending (C-450/19) might finally enable the ECJ to clarify the duration of infringements in bid-rigging cases. The referring Supreme Administrative Court of Finland asks whether competition infringements in bid-rigging cases continue throughout the whole period in which contractual obligations arising from the contract are discharged or payments for the works are made. The issue is well-known to German competition lawyers due to several decisions of the Bundesgerichtshof dubbed “Schlussrechnung” (final invoice). Basically, according to these decisions the question of the referring court would have to be answered affirmatively. It will be interesting to see if the ECJ will pursue the path set out in German case-law.
Dr. Ludger Breuer is a case officer in the Litigation and Legal Division of the Bundeskartellamt, the German Federal Cartel Office.