{"id":2615,"date":"2019-09-06T13:35:29","date_gmt":"2019-09-06T11:35:29","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=2615"},"modified":"2019-09-06T14:14:47","modified_gmt":"2019-09-06T12:14:47","slug":"ssnippets-33-wwwwwww","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2019\/09\/06\/ssnippets-33-wwwwwww\/","title":{"rendered":"SSNIPpets (33): WWWWWWW"},"content":{"rendered":"\n

For the 100th time D’Kart sends out a\nnewsletter. What an anniversary! We celebrate it by announcing a winner. And of\ncourse Rupprecht Podszun is in party mood about everything else that has been\nhappening this week. Here are his SSNIPpets, small but significant news,\ninformation and pleasantries – our pet project!<\/em><\/p>\n\n\n\n


Defining weeks<\/strong><\/h2>\n\n\n\n

As early as\nnext week, Ursula von der Leyen apparently wants to announce who is to take\nover which portfolio in the European Commission. But according\nto Politico<\/a> she has already made a statement on antitrust law in\nadvance. As you know, her father was a\nleading figure in creating European competition law<\/a>. So what is on\nhis daughter\u2019s antitrust to-do list? Market definition. Not too surprising,\nactually, Angela Merkel had had that on her list for quite some time<\/a>.<\/p>\n\n\n\n

In my first\ndays at the Bundeskartellamt, the German competition watchdog, a prime lesson\nwas: \u201cThe fate of the case hinges on the definition of the market!\u201d If you want\nto make a difference in competition law, you probably should take a look at\nthis key issue. But why would you want to make a difference? Well, the failed\nmerger of high speed train companies Siemens and Alstom has a lasting effect in\nBerlin and Paris. The Commission’s prohibition decision seems to serve as an\nexplanation for the fact that there is always something not working out in\nthe ICEs<\/s> some European companies are struggling globally. This wannabe\nEuropean champion now possibly sets a new course in European antitrust law. In\nother recent highly politicized cases, market definition was criticized: This\nis true for Miba\/Zollern<\/em>, the German Mittelstand<\/em> merger saved by a\nministerial authorization that overturned the Bundeskartellamt, and the joint\nventure of Tata and Thyssenkrupp in steel (more on this below). <\/p>\n\n\n\n

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<\/a>. 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!<\/p>\n\n\n\n


TaThy-Tata<\/strong><\/h2>\n\n\n\n

The case of\nTata\/Thyssenkrupp is a somewhat tragic one, at least for us in D\u00fcsseldorf where\nwe are so close to the headquarters of Thyssenkrupp in Essen. Thyssenkrupp is an\niconic German industrial player, but it no longer features in the leading Dax stockmarket\nindex as of September 23. Managers had pinned some hope on the joint venture\nwith Tata Steel, and when that didn’t work out due to a prohibition\ndecision<\/a> from Brussels, the Board was forced to change strategies.\nIt somewhat hurt that competitor ArcelorMittal had been allowed to take over\nIlva in 2018. This actually set a fresh precedent for the TaThy-merger. The\nfocus of Thyssenkrupp’s criticism of the Commission\u2019s decision is on market\ndefinition. The first sentence of criticism in the company’s press\nrelease<\/a> reads:<\/p>\n\n\n\n

\u201cIn 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.\u201d<\/p><\/blockquote>\n\n\n\n

The keyword\n“restrictive market definition” will also have been noticed in the\npolicy circles that briefed Ursula von der Leyen on antitrust law.<\/p>\n\n\n\n

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The trendy Thyssenkrupp Quartier in Essen (archive photo from a cold January).<\/figcaption><\/figure>\n\n\n\n

Obviously,\na company\u2019s problems are not caused by the antitrust authorities or competition\nlaw. But let us assume that the accusation that the markets were wrongly\ndefined is correct: What options does Thyssenkrupp have? They file a complaint\nagainst the decision. That will take time. Even if the European Court of\nJustice finds mistakes in a few years’ time, the deal would be long over. <\/p>\n\n\n\n

According\nto press reports, the successful elevator division is now up for sale. Kone\n(Finland) has expressed interest. People know each other, not least from the\nelevator cartel. But: merger control approval of such a deal would not be a\nhigh-speed lift, but would take months (at least). (And it would again be under\nthe keyword European Champion, since competitors Schindler, Otis and Hitachi\nare not based in the EU!) If Kone is not allowed to jump in, there are probably\nfinancial investors available. But somehow they are no longer regarded as white\nknights since the “risk potential” of such investors “puts at\ndisposal the functionality of the most important foundation of the social\nmarket economy”, as Achim\nWambach and John Weche of the German Monopolies Commission<\/a> write. <\/p>\n\n\n\n

My proposal:\nInstead of reforming market definition, the new EU Commission shall give\npriority to procedural law, speeding up procedures and effective judicial\ncontrol in competition law.<\/p>\n\n\n\n


Antitrust law as a role model <\/strong><\/h2>\n\n\n\n

If not on\ncollision course with European championism, competition law still serves as a\nrole model. The Federal Ministry of Justice in Germany proved this recently.\nThe Ministry leaked a draft bill on corporate criminal law. Fortunately,\ncompetition law violations (while egregious in nature) are not integrated into\nthe body of criminal law. In Germany, they are dealt with in what we call\n\u201cOrdnungswidrigkeitenrecht\u201d, the law of administrative offences (as for\nbreaking speed limits). The new draft bill on crimes committed by, well,\ncompanies nonetheless has been strongly inspired by antitrust law. For example,\npenalties may be 10 % of turnover, there are some cooperation duties and other\nissues translated from our field that seems to work quite well from the\nperspective of the people in the Ministry of Justice. Good news for us is that\nwe can continue to struggle with the \u201cOrdnungswidrigkeitenrecht\u201d in our cases.<\/p>\n\n\n\n

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<\/em>) D\u00fcsseldorf were overturned by the Federal Court of Justice (Bundesgerichtshof<\/em>) recently with just one prevailing (in the wallpaper cartel, *sigh*).<\/p>\n\n\n\n

The Bundeskartellamt<\/em> and the Oberlandesgericht<\/em> 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. <\/p>\n\n\n\n

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?<\/p>\n\n\n\n


The Winner is\u2026<\/strong><\/h2>\n\n\n\n

According to current intelligence, the 10th amendment to the German \u201cGesetz gegen Wettbewerbsbeschr\u00e4nkungen\u201d (GWB), which we are waiting for, shall have as a fancy name \u201cThe GWB Digitisation Act\u201d. 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.<\/p>\n\n\n\n

So we asked professionals for a really catchy name. And these pros were: You. The prize to win was the D\u2019Kart-T-Shirt, which we even upgraded to a polo shirt (gasp!). <\/p>\n\n\n\n

24 suggestions reached us. Some tried it rather seriously, for example a law firm associate proposed \u201eDigitaler-Wettbewerb-Gesetz\u201c (Digital Competition Act) and someone with the alias Waltraud Eucken suggested \u201eStarkes-Kartellamt-Gesetz\u201c (Strong-Competition Authority-Act). In the blue hour<\/em> the rather poetic suggestions came in. A well-known lawyer for example voted for \u201eLa Decima\u201c; a shakespearish member of the Bundeskartellamt invented \u201eDer Digitalm\u00e4chtigen Z\u00e4hmung-Gesetz\u201c (which is a wordplay with the German version of Shakespeare\u2019s The Taming of the Shrew). Some punched right on the kisser: \u201eHaben wir 10 Jahre verpennt-Novelle\u201c (“Have we missed 10 years by oversleeping-Act”), proposed by a lawyer from Munich, or \u201cRettungsgasse gegen GAFA-Gesetz” (The Rescue Lane Aagainst GAFAs Act). Well, the winner takes it all \u2013 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<\/a>!]:<\/p>\n\n\n\n

Weitreichende Wohlfahrt durch wirksamen Wettbewerb im World Wide Web-Gesetz<\/em>
(Extensive welfare through effective competition in the World Wide Web Act )<\/p><\/blockquote>\n\n\n\n

[Fanfare<\/a>!]\nEnglish readers, please spot the alliteration in German, a septuple: WWWWWWW!\nWe believe that the 10th amendment can make a media career in this way and in no\nother way, and that people on the street would love to see the economy in a\nWWWWWWW-order. And the person who invented this is\u2026 [next drum\nroll<\/a> please]: Dr. Stefan Giesen! <\/p>\n\n\n\n

Some of you\nmay know Stefan from his time at Hogan Lovells, now he works for the Reuter\nGroup. In the future, you will recognize him by the D’Kart-polo-shirt. If you\nask yourself what Reuter is doing, I refer you to an inimitably good slogan the\ncompany uses to introduce itself on LinkedIn: “What is Reuter doing? Much\nmore than just selling baths, toilets and showers.” Congratulations!  [Final Fanfare<\/a>!]<\/p>\n\n\n\n


Competitio, ergo sum.<\/strong><\/h2>\n\n\n\n
\"\"<\/figure>\n\n\n\n

What Mr.\nGiesen is to wear, by the way, is our special edition for the 10th amendment:\nThe X for 10 (Latin<\/a>,\nyou know), and the patron saint of our blog D’Kart, namely Descartes, has to\nput up with the fact that his famous sentence “Cogito, ergo sum” is\nridiculed as “Competitio, ergo sum”. I compete, therefore I am. (I\ngot in touch with two Latin lovers and both gave their nod for this from a\nlinguistic perspective).<\/p>\n\n\n\n


HK<\/strong><\/h2>\n\n\n\n
\"\"<\/figure><\/div>\n\n\n\n

My first\ntrip to Hong Kong in 2007 was to attend the Asian Competition Forum<\/a>,\nan antitrust conference that is a hub for practitioners and academics in Asia.\nI take this antitrust connection as an opportunity to pretend that the protests\nin Hong Kong had something to do with antitrust law. But wait\u2026 they actually\ndo! After all, antitrust law is so closely linked to law, freedom and democracy\nthat we, as antitrust lawyers, always have to be on the edge of our seats and get\nup when the rule of law, freedom rights and democratic participation are at\nstake. In this\ntext by Bloomberg<\/a>  the\nwell-known HK antitrust lawyer Sandra Marco Colino explains the connection between\nantitrust law and the protests by referring to weak enforcement in the housing\nsector as one source of discontent that led to the protests.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

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.<\/p>\n\n\n\n


Digital platforms and data<\/strong><\/h2>\n\n\n\n

Let’s stay\nin Asia for a second: Sangyun Lee drew my attention to the Draft\nGuidelines of the Japan Fair Trade Commission<\/a> which deal with\n“Abuse of Superior Bargaining Position under the Antimonopoly Act on the\nTransactions between Digital Platform Operators and Consumers that provide\nPersonal Information, etc.”. The guidelines shall define the approach\ntowards the use of consumer data from a competition law perspective; they are\nup for consultation.<\/p>\n\n\n\n

This catches the attention of people who, these days, think a lot about the abuse of consumer data by digital platforms<\/a>. When I read the proposals of the JFTC, however, the Bundeskartellamt looks like a tamed guinea pig in its Facebook<\/em> 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 D\u00fcsseldorf will take part in the consultation?\u00a0 <\/p>\n\n\n\n


The new Cartel Senate<\/strong><\/h2>\n\n\n\n

The German Federal\nSupreme Court (Bundesgerichtshof, BGH) set up a new bench for competition law\nmatters. There has been a \u201ccartel senate\u201d for ages, but now it becomes a \u201creal\u201d\nsenate and loses its special position as the President\u2019s senate. Bettina\nLimperg, President of the BGH, withdraws from antitrust law. The Cartel Senate\nis now identical with the newly set up XIIIth Civil Law Senate. The members of\nthe senate will now deal with all issues of antitrust law in appeals cases, be\nit in private or public law enforcement. Apart from that they have a competence\nfor energy law, public procurement law and – justice takes miraculous way – for\ncomplaints in detention cases.<\/p>\n\n\n\n

Members as\nbefore:<\/p>\n\n\n\n