{"id":3316,"date":"2019-12-24T11:22:12","date_gmt":"2019-12-24T10:22:12","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=3316"},"modified":"2019-12-24T16:50:08","modified_gmt":"2019-12-24T15:50:08","slug":"ssnippets-36-close-of-business","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2019\/12\/24\/ssnippets-36-close-of-business\/","title":{"rendered":"SSNIPpets (36): Close of business"},"content":{"rendered":"\n

Christmas trees are close to be lit, December\ncookies have to be eaten before being too hard, time for last minute gift shopping\nis running out, and the essential question for the antitrust lawyer is which\nmerger case you still have to get through in 2019 or which damage claims you\nstill have to file by the end of the month. This newsletter provides important\ninformation on this \u2013 it is most probably the last one this year. Before close\nof business, here are Rupprecht Podszun\u2019s SSNIPpets for you \u2013 small but\nsignificant news, information and pleasantries, our pet project.<\/em><\/p>\n\n\n\n

Turn(er)ing point?<\/h1>\n\n\n\n

Let’s start\non a thoughtful note, because it fits into the contemplative times of this time\nof the year. Is competition a good thing? The Turner Prize shed some light on\nthis. It is, as you surely know, the most important competition in the arts in\nthe UK. For several weeks, the works of a few selected artists are on display,\nand a jury then awards the Turner Prize to one of them. This year, however, the\nfour nominated artists were not made from the sterner stuff of standing in competition\nand they announced in a statement that they would share the prize, and thus\nasked the jury not to announce a winner (who takes it all). Their art, so they\nclaimed, is “incompatible with the competition format which has a tendency\nto divide and individualize,” German magazine Spiegel<\/em> quoted the artists (I did not find it so blatantly in the\noriginal English wording, but whatever!). Since they refused to play according\nthe rules of competition I do not mention the names of these artists here (tit\nfor tat)! <\/p>\n\n\n\n

So, what\ndid the jury do? It followed this anti-competitive stance with enthusiasm! Four\nwinners instead of one, great harmony instead of competition. Where does that\nleave consumer welfare, efficiency, innovation? <\/p>\n\n\n\n

With this attack\non competition from the arts, it is reassuring to know that Berlin-based TV\nproducer Jason Laming at least confirmed in the December\ninterview<\/a> I did with him for German competition law journal WuW<\/em> that competition still works well on\nTV shows like \u201cThe Great British Baking Show\u201d, \u201cThe Voice\u201d or \u201cDancing with the\nstars\u201d. According to Jason:<\/p>\n\n\n\n

\u201cOur aim is\nto find the right framework for a show so we maximise exciting things\nhappening. We strive for this with the right setting, the rules of the game and\nalso through competitive elements. Competition is the perfect driver for such a\nshow since it generates pressure. If people are under pressure we really get to\nknow them. And with each episode we get a better understanding of what makes the\nprotagonist betrays his peers on Survivor<\/em>.\u201d<\/p>\n\n\n\n

Number Plates<\/h1>\n\n\n\n

The German Federal\nCartel Office (Bundeskartellamt) is not in holiday mood. On 23 December 2019 a press\nrelease<\/a> was issued that the embossers of number plates were fined eight\nmillion Euros. They restricted competition! The fine will go down well with everyone\n(!) who ever had to get a number plate in Germany in the, say, past 112 years,\ni.e. since the introduction of the license plate requirement for cars in\nGermany. It is an incredible rip-off, and now we know why. Please let your engine\nroar for a second (just a second, Greta Thunberg!) And then, let\u2019s move full\nspeed to damage claims!<\/p>\n\n\n\n

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Price of this number plate is 913 % above the competitive level.<\/figcaption><\/figure>\n\n\n\n

Steel<\/h1>\n\n\n\n

The\nBundeskartellamt’s Working\nGroup on Competition Economics<\/a> also met. That is a small kind of professors\u2019\nconference (just like the big one each year in October, but with economists only).\nIt\u2019s a very small conference indeed: according to the press release there were 4\n(in words: four) academic participants \u2013 all\nmale <\/em>(I will get back to that issue later). The other economists probably\ndidn’t have time, as they were still busy turning down requests for expert\nopinions in damages proceedings\u2026 Topics discussed by the foursome and their\ncounterparts from the Bundeskartellamt: raising rivals’ costs through mergers,\nalgorithms and extensive data collection and exploitation. <\/p>\n\n\n\n

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Some famous German economists.<\/figcaption><\/figure>\n\n\n\n

Not on the\nagenda: the level of fines. The occasion would have been a good one. With a\nfine of 646 million \u20ac imposed on steel manufacturers for agreements on quarto\nplates, the Office hit a new record high. According\nto the Bundeskartellamt<\/a>, the agreements ran from 2002 to 2016, apparently\ninvolving four companies that met in the “Technicians’ Circle” of the\nRolled Steel Association. Roll clad quarto plates were not affected by the\ncartel (#servicetweet). The art of the steal.<\/p>\n\n\n\n

Glass fibre expansion<\/h1>\n\n\n\n

If this\ndoes not excite you too much (obviously one may lose track of who has ripped\noff whom and when and how in the past years in that business) you may be more\ninclined to look at another case that the Bundeskartellamt did these days. It\nis a fascinating sector (Internet!) and it seems to be really interesting\nregarding legal substance. I am talking about a cooperation agreement that the\nBundeskartellamt investigated under merger control and section 1 of the\ncompetition act for restrictive practices. Remember: No Netflix without a\nnetwork. But someone has to build this infrastructure, and in case of doubt in\nGermany, this rests with Deutsche Telekom, the incumbent. Telekom partnered\nwith EWE, a municipal utility company in northern Germany to build the fibre-optics\nnetwork, pooling their resources instead of competing. Expansion of that\nnetwork is highly desired in Germany. <\/p>\n\n\n\n

The competitive\nassessment<\/a> of the Bundeskartellamt is abundantly clear:<\/p>\n\n\n\n

“By\nworking together in the joint venture, Telekom and EWE avoid the investment\ncompetition described above with regard to the expansion of the fibre-optic\nnetwork in the area covered by the cooperation. Without the commitments, it is\nalso to be expected that competitors who are currently pursuing their own network\nexpansion projects in that area would be deterred from further competing by the\ncooperation of the two strongest competitors. As a result, without the\ncommitments, a slowdown and reduction of the fibre roll-out in the area would\nbe expected, which in turn would worsen the range and quality of supply on the\nwholesale and retail markets. Moreover, expansion will tend to shift to more\nurban areas with high cable network coverage. In addition, without the\ncommitments, wholesale customers would have to expect to obtain wholesale\nservices at less favourable conditions than would be the case if the network was\nexpanded individually. In the case of a cooperation, the two parties in the\ncooperation area are able to serve a large part of the demand themselves, which\nis why their incentives are lower to grant access to their new fibre optic\nnetwork to third wholesale customers competing with them on the retail market “.\n(recital 20 et seq. of the decision)<\/p>\n\n\n\n

To the\nrescue: commitments. Since the Bundeskartellamt sees no room for an exemption\n(see Or Brook in the Antitrust\nAdvent Calendar<\/a>) commitments were drawn up: expand the network, grant\naccess and participate in funding procedures on an independent, non-coordinated\nbasis. The decision is well worth a read for those who consider to cooperate in\ninvestments! <\/p>\n\n\n\n

Money, money<\/h1>\n\n\n\n

The\nBundeskartellamt also\nprohibited a merger<\/a> in the final stages of the year (probably, there was some\nspace left in the Annual Report that still needs to be filled): Ziemann may not\nbe bought by Loomis, the two companies make their money with “cash\nservices”, e.g. money transport. The merger would have been a 3 to 2. <\/p>\n\n\n\n

That\u2019s a\ntopic for journalist Hanno Bender, who runs a blog in\nGerman on paying without cash<\/a>. In the latest issue he gives an outlook on\nthe Girocard lawsuits at the District Court (Landgericht<\/em>) Berlin \u2013 and complains about the information policy of\nthe Berlin court. After all, transparency and public control are key for a\ndemocratic justice. Damage claims in this matter on credit cards need to be filed\nby the end of the month. Hanno Bender should not complain too hard though: Berlin\ncourts are infamous for their lack of IT infrastructure (or any infrastructure,\nto be precise). (The Higher Regional Court of Berlin, the Kammergericht, came\nunder attack by hackers recently, but was able to continue business quite okay\nsince it still relies heavily on paper anyway\u2026). So, the information to Hanno\nBender may still be stuck in the mail \u2013 so much to deliver for the postal\nservices over Christmas!<\/p>\n\n\n\n

\"\"
This is what German teletext looks like… photo by user: adrio (Wikipedia), licence CC-BY SA 3.0<\/figcaption><\/figure><\/div>\n\n\n\n

But one\nshould not underestimate the power of more traditional media. Hasso Plattner,\nafter all the founder of the one and only global IT-player from Dschermany, SAP,\ngets his information from the – – – Attention, please! – Teletext<\/em>. This was revealed in an interview with German weekly\nFrankfurter Allgemeine Sonntagszeitung. Teletext is that pre-Internet\nTV-information system that looks on screen as if you had printed it with a dot-matrix printer<\/a>\nfrom 1981\u2026 I would love to explain further to foreign and younger readers, but\nI would have to start with what a \u201cweekly\u201d is, and what \u201ctelevision\u201d is and so\non \u2013 and it\u2019s probably not worth the while. Plattner believes in Teletext. That\u2019s<\/em> news.<\/p>\n\n\n\n

Happy Austria!<\/h1>\n\n\n\n

Personal\ncontact is nicer anyway than this media-thing. The human touch. Let\u2019s go for\nthe more touching stories in these messy<\/s> Christmassy times! In this\ncontext the Austrian Federal Competition Authority gave helpful guidance on\nTwitter: <\/p>\n\n\n\n

“On\n23, 27 and 30 December 2019 and 2 and 3 January 2020 merger notifications will\nonly be accepted from 8 a.m. to 12 noon.”<\/p>\n\n\n\n

The tweet\nraised the question whether applications in Austria are to be submitted in\nperson. Section 10(1), second sentence, of the Austrian\nCartel Law<\/a> tells me: ‘Notification of a merger shall be submitted in four identical copies\nincluding the required annexes’. What is translated as \u201csubmitted\u201d here\nis \u201ceinbringen\u201d in German, a term that I was unaware of in this context. So turning\nfor help in interpretation to the website of the Federal Competition Authority\n(Bundeswettbewerbsbeh\u00f6rde<\/em>) I learn the\nfollowing: <\/p>\n\n\n\n

\u201c[The notification]\ncan be filed either by post, or in person during office hours (Mon-Thu\n8:00-14:00, Fri 8:00-12:00) at the office (1st floor, room C1b), or with the\nsecretary (1st floor, room A8) of the Federal Competition Authority.\u201d<\/p>\n\n\n\n

Better\nbring 3.500 Euros, the \u201cflat-rate fee\u201d that is due otherwise the clock is not\ngoing to start. I can well imagine how it is celebrated in Vienna with royal\nand imperial glamour when the antitrust partner of a Viennese law firm and his\nentourage show up to hand over the notification in person to Director General\nDr. Thanner, not without a lot of courtesies\u2026 (sorry I am taken away by this\nlittle trip to Austria, yet for Germans Christmas holidays is essentially about\nwatching the \u201cSissi\u201d<\/a>\nmovies, presenting the life of former Austrian empress Elisabeth with Romy\nSchneider starring!)<\/p>\n\n\n\n

\"\"
Vienna!<\/figcaption><\/figure>\n\n\n\n

One more thing\nto report from Radetzkystra\u00dfe 2 in Vienna: At the end of November the Bundeswettbewerbsbeh\u00f6rde<\/em> presented a\n“Position\nPaper on National and European Champions<\/a> in Merger Control”, and this\n30-pages paper has become a great manifesto of free competition. The authority deals\nwith the proposals, especially those from Germany and France, which had arisen\nafter the Siemens\/Alstom<\/em> merger\nprohibition. It is actually sufficient to read the “Conclusio” on p.\n25 – written in a sober tone and based on substance. So everything, really\neverything, is now said about this debate on industrial policy in competition\nlaw, and we can return to simply enforcing merger control laws. <\/p>\n\n\n\n

Looking to the calendar<\/h1>\n\n\n\n

Readers may\nexpect me to give a precise and sharp review of 2019, yet this has already been\nundertaken by the contributors to that fabulous 2019\nAntitrust Advent Calendar<\/a> which ended today. As you will surely know by\nnow, we had asked 20 younger antitrust lawyers, male and female, what they\nconsidered to be the most important development in 2019.<\/p>\n\n\n\n

Talking of \u201cmale\nand female\u201d, I have to make a short stop here to raise (and immediately get rid\nof) a question that has unsettled me: \u201cWhat’s gender got to do with\ncompetition?\u201d<\/p>\n\n\n\n

Sigh. I am\nnot unsettled by this question because of feeling guilty \u2013 in the Antitrust Advent\nCalendar we feature 13 women and 11 men. This is gender balance at its best even\nfor the oh-so-balanced Leyen Commission<\/em>\n(12 women, 15 men). The question does not unsettle me either, because I do not\nknow the answer. The answer is nothing<\/s>.\n[insert shitstorm here<\/em>] (Reading more\nabout it, I may be mistaken).<\/p>\n\n\n\n

The\nunsettling thing about this is: What did we do wrong that the discussion on\ngender only reaches our field now!? The OECD\nGlobal Forum<\/a> on Competition had met in 2018 and dealt with the matter, and\nnow it reached me because of an OECD paper on the subject. Simone de Beauvoir\npublished “The Second Sex” in 1949, Judith Butler published\n“Gender Trouble” in 1990. And now, ladies and gentlemen of antitrust\nlaw, only now we start to ask ourselves whether our gender-blind categories of\nundertakings and consumers are doing wrong to the reality of markets? I remember\nthat not so long ago, the Free University of Berlin advertised a position for a\nprofessor in antitrust law looking for someone who would deal with the gender-specific\naspects of the subject, too. Let’s see where further developments will take us.<\/p>\n\n\n\n

Back to the calendar<\/h1>\n\n\n\n

Our Calendar\nincludes people from agencies and one from a court, young academics, aspiring lawyers\nfrom law firms etc. \u2013 the whole spectrum of promising people who probably still\nhave the peak of their careers ahead of them. In between we had scattered the\nanswers of four legendary personalities of our community. We asked them for\ntheir advice to the next generation. We are a bit proud that we were able to\nwin Eleanor Fox, Deborah P. Majoras, Christopher Bellamy and Wang Xiaoye \u2013 four\nnames that stand for groundbreaking developments and have inspired us. <\/p>\n\n\n\n

In all\ncontributions, whether from the Thirtysomethings or the legends, you get the\nimpression that 2019 is perceived as a year of transition: The end of Vestager\nTerm No. 1, dominated by policy debates and pioneering procedures, all of which\nhave not yet reached their end: The Facebook case is hanging in interim\nproceedings (the Federal Court of Justice has not yet ruled in interim, the\nD\u00fcsseldorf Higher Regional Court has not yet ruled in the main proceedings);\nthe amendment to the German competition act is caught in an interministerial\nstalemate between the Ministry of Economics and the Ministry of Justice; the\nCommission’s major Google cases are waiting for their verdict by the Court; its\nAmazon investigation is not yet completed; the revision of the Vertical Block\nExemption Regulation with its focus on online trading is underway and with the\nannouncement to revise the market definition notice Commissioner Vestager has,\nin good time before the end of the year, thrown out a bait for 2020 that inspires\nfriends of industrial policy (beddy-by,\nyou have some rest now!<\/em>) and antitrust reformers alike.<\/p>\n\n\n\n

It’s more than GAFA<\/h1>\n\n\n\n

Having said\nthat: This little review does not do justice to the contributions in the calendar\nnor to the year in antitrust. Yes, Silicon Valley antitrust is still the major\ntopic: France<\/a>\nrecently fined Google 150 million euros, Hungary<\/a>\nwent for Facebook with a 3.63 million euros fine. Thorsten\nK\u00e4seberg<\/a> from the German Federal Ministry of Economics, the World\nEconomic Forum<\/a> and the British Competition\n& Markets Authority<\/a> presented remarkable reports on the platform\neconomy. But antitrust law is so much more than “taming the tech\ntitans”. And thankfully, the younger antitrust lawyers draw attention to\nthe sparkling-twinkling skies of that most beautiful field of the law ever<\/em>.<\/p>\n\n\n\n

Just a few\nexamples: The two staff members from the Bundeskartellamt whom we asked to\ncontribute wrote about important fining cases, a lawyer pointed to the\nunderestimated decision of the D\u00fcsseldorf Higher Regional Court on RPM, our Heinrich\nHeine University youngsters looked at seminal judgments in damages cases, and\nsome authors dealt with the inclusion of further policy issues (e.g. sustainability!).\nThere is so much going on. And soon another new year with almost infinite\npossibilities \u2013 or at least 365<\/s> 366 days \u2013 gives us the chance to put\nthis into practice. Or, to quote Eleanor Fox: “We look to you to save us\nfrom becoming our own robots.”<\/p>\n\n\n\n

We would like to thank you, dear readers, for\nyour constant interest, your helpful hints and your occasional contributions\n(there may be more!). Enjoy the Bundeskartellamt\u2019s Trust Sentinels’ contribution\nto our Advent Calendar 2018<\/a> again, look forward to the exciting\ndevelopments in 2020 and enjoy the festive season. Cheers to free and fair\ncompetition!<\/em><\/p>\n\n\n\n

Amicalement – Rupprecht Podszun, Thilo Klawonn\n& the team of D’Kart<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Christmas trees are close to be lit, December cookies have to be eaten before being too hard, time for last minute gift shopping is running out, and the essential question for the antitrust lawyer is which merger case you still have to get through in 2019 or which damage claims you still have to file by the end of the month. This newsletter provides important information on this \u2013 it is most probably the last one this year. Before close…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":3320,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[240],"tags":[224,9,306,307],"class_list":["post-3316","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-ssnippets","tag-adventskalender","tag-bundeskartellamt","tag-kooperationen","tag-oesterreich"],"translation":{"provider":"WPGlobus","version":"3.0.0","language":"en","enabled_languages":["de","en"],"languages":{"de":{"title":true,"content":true,"excerpt":false},"en":{"title":true,"content":true,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/3316","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/comments?post=3316"}],"version-history":[{"count":4,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/3316\/revisions"}],"predecessor-version":[{"id":3332,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/3316\/revisions\/3332"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media\/3320"}],"wp:attachment":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media?parent=3316"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/categories?post=3316"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/tags?post=3316"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}