For the 100th time D’Kart sends out a newsletter. What an anniversary! We celebrate it by announcing a winner. And of course Rupprecht Podszun is in party mood about everything else that has been happening this week. Here are his SSNIPpets, small but significant news, information and pleasantries – our pet project!
As early as next week, Ursula von der Leyen apparently wants to announce who is to take over which portfolio in the European Commission. But according to Politico she has already made a statement on antitrust law in advance. As you know, her father was a leading figure in creating European competition law. So what is on his daughter’s antitrust to-do list? Market definition. Not too surprising, actually, Angela Merkel had had that on her list for quite some time.
In my first
days at the Bundeskartellamt, the German competition watchdog, a prime lesson
was: “The fate of the case hinges on the definition of the market!” If you want
to make a difference in competition law, you probably should take a look at
this key issue. But why would you want to make a difference? Well, the failed
merger of high speed train companies Siemens and Alstom has a lasting effect in
Berlin and Paris. The Commission’s prohibition decision seems to serve as an
explanation for the fact that
there is always something not working out in
the ICEs some European companies are struggling globally. This wannabe
European champion now possibly sets a new course in European antitrust law. In
other recent highly politicized cases, market definition was criticized: This
is true for Miba/Zollern, the German Mittelstand merger saved by a
ministerial authorization that overturned the Bundeskartellamt, and the joint
venture of Tata and Thyssenkrupp in steel (more on this below).
I think it is a highly dangerous endeavor to correct market definition by legislation. Sure: I am a big fan of discussing market definition in each individual case and also as a general concept. Yet, I doubt that a legislative intervention, driven by wishful thinking about industrial policy, can do any good. If something goes wrong here, competition law, this locomotive of the European project, could be completely derailed. May Saint Margrethe be with us!
The case of Tata/Thyssenkrupp is a somewhat tragic one, at least for us in Düsseldorf where we are so close to the headquarters of Thyssenkrupp in Essen. Thyssenkrupp is an iconic German industrial player, but it no longer features in the leading Dax stockmarket index as of September 23. Managers had pinned some hope on the joint venture with Tata Steel, and when that didn’t work out due to a prohibition decision from Brussels, the Board was forced to change strategies. It somewhat hurt that competitor ArcelorMittal had been allowed to take over Ilva in 2018. This actually set a fresh precedent for the TaThy-merger. The focus of Thyssenkrupp’s criticism of the Commission’s decision is on market definition. The first sentence of criticism in the company’s press release reads:
“In its competitive assessment of the product groups of packaging steel and hot-dip galvanized steel for the automotive industry, the Commission has for the first time set out a restrictive market definition that unduly extends the scope of the existing competition law.”
The keyword “restrictive market definition” will also have been noticed in the policy circles that briefed Ursula von der Leyen on antitrust law.
Obviously, a company’s problems are not caused by the antitrust authorities or competition law. But let us assume that the accusation that the markets were wrongly defined is correct: What options does Thyssenkrupp have? They file a complaint against the decision. That will take time. Even if the European Court of Justice finds mistakes in a few years’ time, the deal would be long over.
According to press reports, the successful elevator division is now up for sale. Kone (Finland) has expressed interest. People know each other, not least from the elevator cartel. But: merger control approval of such a deal would not be a high-speed lift, but would take months (at least). (And it would again be under the keyword European Champion, since competitors Schindler, Otis and Hitachi are not based in the EU!) If Kone is not allowed to jump in, there are probably financial investors available. But somehow they are no longer regarded as white knights since the “risk potential” of such investors “puts at disposal the functionality of the most important foundation of the social market economy”, as Achim Wambach and John Weche of the German Monopolies Commission write.
My proposal: Instead of reforming market definition, the new EU Commission shall give priority to procedural law, speeding up procedures and effective judicial control in competition law.
Antitrust law as a role model
If not on collision course with European championism, competition law still serves as a role model. The Federal Ministry of Justice in Germany proved this recently. The Ministry leaked a draft bill on corporate criminal law. Fortunately, competition law violations (while egregious in nature) are not integrated into the body of criminal law. In Germany, they are dealt with in what we call “Ordnungswidrigkeitenrecht”, the law of administrative offences (as for breaking speed limits). The new draft bill on crimes committed by, well, companies nonetheless has been strongly inspired by antitrust law. For example, penalties may be 10 % of turnover, there are some cooperation duties and other issues translated from our field that seems to work quite well from the perspective of the people in the Ministry of Justice. Good news for us is that we can continue to struggle with the “Ordnungswidrigkeitenrecht” in our cases.
It is nice to see that the belief in the value of competition law is still unshaken. But the faith is vested into us at a time when internally, the system of fining in the antitrust world is creaking and cracking. That is almost an ironic turn. After all, three decisions of the Higher Regional Court (Oberlandesgericht) Düsseldorf were overturned by the Federal Court of Justice (Bundesgerichtshof) recently with just one prevailing (in the wallpaper cartel, *sigh*).
The Bundeskartellamt and the Oberlandesgericht are at odds over how to calculate fines. Some procedural issues have led to raised eyebrows by judges. Excesses of leniency, settlements and fining in general have met with criticism.
In corporate criminal law, compliance measures and internal investigations shall have higher impact in the future by mitigating punishment under certain conditions. From an antitrust point of view (as well as from many other points of view), there are a lot of questions about this, too. However, the details should not obscure the view on the core question of the whole draft bill: Do we need a criminal law (in that technical sense) for companies at all?
The Winner is…
According to current intelligence, the 10th amendment to the German “Gesetz gegen Wettbewerbsbeschränkungen” (GWB), which we are waiting for, shall have as a fancy name “The GWB Digitisation Act”. We simply hope that the new rules are crafted with more diligence. GWB, in the ears of an innocent bystander who shall develop some interest in such an act, sounds more like an Austrian construction company than the central piece of legislation for the market economy. And it is not the GWB itself that is to be digitised, as the name suggests, but… oh, this name simply does not work.
So we asked professionals for a really catchy name. And these pros were: You. The prize to win was the D’Kart-T-Shirt, which we even upgraded to a polo shirt (gasp!).
24 suggestions reached us. Some tried it rather seriously, for example a law firm associate proposed „Digitaler-Wettbewerb-Gesetz“ (Digital Competition Act) and someone with the alias Waltraud Eucken suggested „Starkes-Kartellamt-Gesetz“ (Strong-Competition Authority-Act). In the blue hour the rather poetic suggestions came in. A well-known lawyer for example voted for „La Decima“; a shakespearish member of the Bundeskartellamt invented „Der Digitalmächtigen Zähmung-Gesetz“ (which is a wordplay with the German version of Shakespeare’s The Taming of the Shrew). Some punched right on the kisser: „Haben wir 10 Jahre verpennt-Novelle“ (“Have we missed 10 years by oversleeping-Act”), proposed by a lawyer from Munich, or “Rettungsgasse gegen GAFA-Gesetz” (The Rescue Lane Aagainst GAFAs Act). Well, the winner takes it all – this is competition, and the winner was chosen by the toughest jury I could think of: My students from the competition law class at Heinrich Heine University. They voted (in their break). And here is the name they chose for the 10th amendment of the German competition act [drum roll!]:
Weitreichende Wohlfahrt durch wirksamen Wettbewerb im World Wide Web-Gesetz
(Extensive welfare through effective competition in the World Wide Web Act )
[Fanfare!] English readers, please spot the alliteration in German, a septuple: WWWWWWW! We believe that the 10th amendment can make a media career in this way and in no other way, and that people on the street would love to see the economy in a WWWWWWW-order. And the person who invented this is… [next drum roll please]: Dr. Stefan Giesen!
Some of you may know Stefan from his time at Hogan Lovells, now he works for the Reuter Group. In the future, you will recognize him by the D’Kart-polo-shirt. If you ask yourself what Reuter is doing, I refer you to an inimitably good slogan the company uses to introduce itself on LinkedIn: “What is Reuter doing? Much more than just selling baths, toilets and showers.” Congratulations! [Final Fanfare!]
Competitio, ergo sum.
What Mr. Giesen is to wear, by the way, is our special edition for the 10th amendment: The X for 10 (Latin, you know), and the patron saint of our blog D’Kart, namely Descartes, has to put up with the fact that his famous sentence “Cogito, ergo sum” is ridiculed as “Competitio, ergo sum”. I compete, therefore I am. (I got in touch with two Latin lovers and both gave their nod for this from a linguistic perspective).
My first trip to Hong Kong in 2007 was to attend the Asian Competition Forum, an antitrust conference that is a hub for practitioners and academics in Asia. I take this antitrust connection as an opportunity to pretend that the protests in Hong Kong had something to do with antitrust law. But wait… they actually do! After all, antitrust law is so closely linked to law, freedom and democracy that we, as antitrust lawyers, always have to be on the edge of our seats and get up when the rule of law, freedom rights and democratic participation are at stake. In this text by Bloomberg the well-known HK antitrust lawyer Sandra Marco Colino explains the connection between antitrust law and the protests by referring to weak enforcement in the housing sector as one source of discontent that led to the protests.
I am impressed, by the way, by the courage of the young people, Joshua Wong and Agnes Chow for example, who lead the protests for democracy and rather go to prison than bow down. The Asian Competition Forum will take place again in January 2020. Not in Hong Kong, but this time in Valencia, Spain.
Digital platforms and data
Let’s stay in Asia for a second: Sangyun Lee drew my attention to the Draft Guidelines of the Japan Fair Trade Commission which deal with “Abuse of Superior Bargaining Position under the Antimonopoly Act on the Transactions between Digital Platform Operators and Consumers that provide Personal Information, etc.”. The guidelines shall define the approach towards the use of consumer data from a competition law perspective; they are up for consultation.
This catches the attention of people who, these days, think a lot about the abuse of consumer data by digital platforms. When I read the proposals of the JFTC, however, the Bundeskartellamt looks like a tamed guinea pig in its Facebook proceedings, not like a fire-breathing dragon. According to the Draft Guidelines, any incorrect handling of data at a company with superior bargaining power could become a violation of the law, which could also be prosecuted under antitrust law. Maybe the Higher Regional Court of Düsseldorf will take part in the consultation?
The new Cartel Senate
The German Federal Supreme Court (Bundesgerichtshof, BGH) set up a new bench for competition law matters. There has been a “cartel senate” for ages, but now it becomes a “real” senate and loses its special position as the President’s senate. Bettina Limperg, President of the BGH, withdraws from antitrust law. The Cartel Senate is now identical with the newly set up XIIIth Civil Law Senate. The members of the senate will now deal with all issues of antitrust law in appeals cases, be it in private or public law enforcement. Apart from that they have a competence for energy law, public procurement law and – justice takes miraculous way – for complaints in detention cases.
Members as before:
- Prof. Dr. Peter Meier-Beck, an honorary professor of our faculty and also a director of our Institute for Competition Law, who will serve as a chairman;
- Prof. Dr. Wolfgang Kirchhoff as his deputy;
- Dr. Klaus Bacher and
- Dr. Ute Hohoff.
- Dr. Birgit Linder (wrote her PhD thesis on collective dominance in merger control);
- Dr. Ulrike Picker (served on the Cartel Senate of the Berlin Higher Regional Court);
- Dr. Patricia Rombach (well-known as a competition expert from her time at courts in Mannheim and Karlsruhe);
- Dr. Heinrich Schoppmeyer;
- Dr. Jan Tolkmitt (who once worked with Allen & Overy’s competition law team and is also one of the co-authors in a leading German book on antitrust law).
This is an impressive 100 % Doctor juris quota! What is more: In the past, people were appointed to the Cartel Senate who were not primarily concerned with competition law or did not have formative years in this area. So, there may be a change in approaching the area. And with Dr. Schoppmeyer who wrote his PhD on legal theory and was a judge focusing on inheritance and insurance law, there is even a maverick on the bench!
Greek, no geek
Another story is exciting: Ioannis Lianos has been appointed head of the Greek antitrust authority. Ioannis is a Professor at University College London and Chief Researcher of the Russian think tank HSE Skolkovo Institute. He is a very distinguished, passionate antitrust lawyer full of ideas (and he is here, there and everywhere). As a scholar, he has never been afraid to touch taboos.
We once sat as experts on the Economic Committee of the German parliament to discuss concentration in the agricultural sector on the basis of the Bayer/Monsanto merger. Two things to remember: Firstly, the guest from England rattled down his comments so quickly that the translator skipped a couple of sentences once in a while. Secondly, he would have prohibited Bayer/Monsanto. The discussions in the European Competition Network should become more lively!
In ECN, Ioannis will meet with his French counterpart Isabelle da Silva. She just had the first takeover of a football club on her table. Fans of OGC Nice seem to love her so much after this deal that they did a crowdfunding and collected 177 Euros for a bottle of wine. Santé!
On its website, the Bundeskartellamt warns of fake e-mails that pretend to come from the agency. Please look twice next time if you don’t want to believe that this really comes from the Bundeskartellamt.
That reminds me of our mail problems. If you’re wondering why you don’t receive emails from D’Kart, take a look at your spam folder. Or sign up for our newsletter (and don’t forget to take a look in the spam folder during registration)!
On our own behalf
There are three things I have to tell you on official business:
On 11.9.2019 our Institute for Competition Law will be hosting the EU Competition Conference with CMS, the law firm, in Brussel – with many exciting guests.
On 23. and 24.9.2019 we expect over fifty young academics in antitrust law, who are currently writing their doctoral theses, to attend our Open Doctoral Seminar. Wouter Wils, Julia Holtz, Raphal L’Hoest, Andreas Schwab and, of course, the fabulous lawyers of the Düsseldorf bar will be there as discussants.
On 25.9.2019, three co-authors of the draft for the WWWWWWW-Act will present it to us in Düsseldorf. This is a real highlight, where Thorsten Käseberg and Maja Murza from the Federal Ministry of Economics and Technology and Tobias Brenner (now Federal Cartel Office) tell us first hand what the Ministry is planning for competition law in Germany. If you would like to join, please get in touch.
See you – in Bruxelles or in Duxellesdorf! And have a nice weekend!