{"id":2800,"date":"2019-10-04T16:48:48","date_gmt":"2019-10-04T14:48:48","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=2800"},"modified":"2019-10-04T20:42:29","modified_gmt":"2019-10-04T18:42:29","slug":"ssnippets-34-in-vorfreude","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2019\/10\/04\/ssnippets-34-in-vorfreude\/","title":{"rendered":"SSNIPpets (34): In anticipation"},"content":{"rendered":"\n

We’re happy these days since we are looking\nforward, for example, to the 10th amendment of the German competition act or to\nthe start of the teaching term in university (which only starts now in\nGermany). But since both events are still a few days away, we are also happy\nlooking at the colourful autumn leaves we have seen so far. Rupprecht Podszun\nhas raked it together. Here are his SSNIPpets – small, but significant news,\ninformation and pleasantries – our pet project!<\/em><\/p>\n\n\n\n


\nSanctions<\/strong><\/h2>\n\n\n\n

Arndt Kirchhoff, an automotive boss and an important representative of the\nindustry, gave an interesting interview\nin the S\u00fcddeutsche Zeitung<\/a> recently, stating: Maybe it\nis a bit too much <\/em>for some in the automotive business: mobility\nturnaround, climate change, trade disputes and so on. Politely, he did not\nrefer to the legal issues that are causing problems for vehicle manufacturers.\nMore than 430,000 customers have registered themselves for class action-style\nproceedings against VW on the Diesel scandal with the Higher Regional Court of\nBraunschweig. Just imagine! The procedural tool of \u201cMusterfeststellungsklage\u201d\nis new to Germany, and we are interested to see how that works. Besides this\nmass claim proceeding there was a report in German\nmedia<\/a> that over 60,000 further cases in this matter\nare pending, and that there are a further 40,000 procedures with judgments in\nthe Diesel litigation. (For our American friends: For us this is really very,\nvery much and very, very new).<\/p>\n\n\n\n

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This is not a courtroom but the a congress center in Braunschweig where people now meet for Diesel litigation. \u00a9 Igge, CC BY-SA-3.0<\/a> <\/figcaption><\/figure>\n\n\n\n

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

Then there is the trucks cartel. Deutsche Bahn stated<\/a> that it is claiming 500 million \u20ac from Daimler – for itself, the German\nArmed Forces and 40 other companies, the case goes to a Regional Court in\nMunich. Daimler, by the way, makes use of a special exception in International\nAccounting Standards (37.92) and refrains from stating the deferrals for such\ncases in the annual report \u2013 it could worsen their defence position, so they\nsay.<\/p>\n\n\n\n

Meanwhile, the German government is considering a draft for a criminal law\nfor companies. This aims to teach companies manners with the quite sharp and\noften abrasive sword of criminalization. (Do you notice how companies<\/em>\nand manners<\/em> simply don’t fit together? That is not because companies\nbehave naughty per se<\/em>, but because it’s not companies that behave, but\nthe people acting there. Q.e.d.)<\/p>\n\n\n\n

Endless proceedings, fines, claims for damages and possibly a tough\ncriminal law including the principle of legality meaning that prosecutors have\nto go after cases and are not free (as in antitrust law) to choose cases \u2013\nsomehow this is really… \u201ca bit too much\u201d. The Augsburg criminal law professor\nMichael Kubiciel writes\nwith reference to a study by Brandon Garrett<\/a> (“Too\nbig to jail”):<\/p>\n\n\n\n

“Corporate criminal law as an instrument of economic policy: Foreign companies are treated considerably harder by US authorities than their American competitors”.<\/p><\/blockquote>\n\n\n\n

And the Germans, so perhaps his implicit assertion, are making life\ndifficult for their national champions<\/s> their biggest companies during\nhard times.<\/p>\n\n\n\n


\nNo pity<\/strong><\/h2>\n\n\n\n
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Cartel offender (illustration not binding) <\/figcaption><\/figure><\/div>\n\n\n\n

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

BUT. Compassion with the poor cartel offenders<\/s> companies is out of\nplace. The problems are homemade, the German automobile industry could have\nspared itself most of the trouble. Also, VW has so far been able to avoid larger\npayments to private consumers in Germany (other than in the US). And in the\ncartel cases, the companies are involved in protracted disputes, but whether\nanything ever comes out of it seems questionable. Only recently, Daniel von Brevern posted\non LinkedIn<\/a> that they had counted 43\njudgments in the trucks cartel, but not a single one that even dealt with the\nlevel of damages. This court success rate of 0 % seems quite representative for\ncartel damages in Germany. One could call this almost scandalous. Or at least \u2013\n\u201ca bit too little\u201d.<\/p>\n\n\n\n

So there is no pity at this point for the time being, but I have a delicacy\nof the 1st Cartel Senate of the Higher Regional Court of D\u00fcsseldorf for you.\nRemember, this is the Facebook <\/em>court which is never at a loss for clear\nwords. There, a company from the rail cartel had applied to alter a judgment\nnot on substance but on the wording. They wanted to have the term “cartel offender”\n(\u201cKartellt\u00e4ter\u201d, in German) replaced by “the company that was fined”\n(\u201cbebu\u00dftes Unternehmen\u201d) in the ruling, or as the Senate beautifully put it:\nthey wanted to “mortify” the term “cartel offender” (decision of 5 March 2019,\ncase U (Kart) 17\/17<\/a>). The applicant\u2019s reasoning:\nCartels are not a criminal offence in Germany (it is dealt with under what we\ncall administrative criminal law, \u201cOrdnungswidrigkeitenrecht\u201d), so we are not\noffenders.<\/p>\n\n\n\n

Awwwwwww. Taking such a case to the 1st Senate is, of course, already hard\nat the borders of masochism. The Higher Regional Court rightly states that even\na person with “average legal knowledge” knows that the term\n“offender” (“T\u00e4ter”) is not limited to criminal law, but is\nalso used in the relevant provisions of the Ordnungswidrigkeitenrecht<\/em>\nand in tort law. The Court does not stop there:<\/p>\n\n\n\n

“Of course, not having criminal liability does not change the fact that cartels such as the one at issue are prohibited by law because they endanger the institution of free competition as an essential component of the free market economy and the individual freedom of the market participants to act, thereby regularly causing considerable damage to the detriment of the economy as a whole. In the present case, this fact needs to be emphasised because, in particular, the application for rectification of the wording under discussion gives rise to doubts as to whether the fine of \u20ac 88 million imposed by the Bundeskartellamt [on the applicant in this case] for its participation in the cartel in question was sufficient in itself to make clear to this party the considerable gravity of the injustice realised by its act with the necessary urgency.\u201d<\/p><\/blockquote>\n\n\n\n

Nuff said.<\/p>\n\n\n\n


\nTax-i<\/strong><\/h2>\n\n\n\n

Many “cartel offenders”, “fined companies\u201d or whatever would\nprobably at least like to be able to consider the fine as a\ntax-reducing factor<\/a>. The highest Fiscal Court in\nGermany has now decided<\/a> that this is conceivable \u2013 if and only if there is a skimming off of\nprofits. However, the calculation of the fine on the basis of the turnover is\nnot sufficient for an equation with skimmed off profits. Our one and only Christian Kersting\nexplains in this podcast<\/a> whether the Fiscal Court\ncorrectly interpreted antitrust law.<\/p>\n\n\n\n


\nMark your calendars: Our Lecture Series on antitrust law<\/strong><\/h2>\n\n\n\n

It will be winter term, and you know what that means: With the teaching\nstarting at D\u00fcsseldorf University, our lecture series on antitrust law will\nenter a new round. If you have time on Thursdays and would like to find out\nfirst hand from the best, who else, what happens in practice, please join us in\nseminar room 01.21 in building 24.91, that is our Law Faculty at Heinrich Heine\nUniversity, at 2.15 p.m. Even you, yes you<\/em>, can probably learn something\nthere!<\/p>\n\n\n\n

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The kick-off will be on 10 October 2019 with Maria Jaspers from the EU\nCommission. Then we will swiftly dance through all topics of competition law\nand our dancing instructors will be outstanding members from the D\u00fcsseldorf\nantitrust bar. The Bundeskartellamt will of course also be represented, this\ntime by Sabine Sabir who will speak on 31 October 2019. All topics, all\nspeakers can be found on this flyer<\/a> or on our institute\u2019s\nwebsite<\/a>! [This is a permissible self-promotion.<\/em>]<\/p>\n\n\n\n


\nPersonal data<\/strong><\/h2>\n\n\n\n