{"id":3434,"date":"2020-02-29T01:31:50","date_gmt":"2020-02-29T00:31:50","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=3434"},"modified":"2020-02-29T08:08:29","modified_gmt":"2020-02-29T07:08:29","slug":"ssnippets-37-home-office","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2020\/02\/29\/ssnippets-37-home-office\/","title":{"rendered":"SSNIPpets (37): Home Office"},"content":{"rendered":"\n

Carnival is over, we were still allowed to go outside the door in the Rhineland then. In the meantime, everything has moved to home office. Now, what happens if you are no longer allowed to see your local bookstore since you may bump into someone coming home from a conference in China? Before you run out of stock of reading material, Rupprecht Podszun has hoarded news and written down what was still on his mind for 2019 and 19a. Here are his SSNIPpets: small but significant news, pleasantries and information \u2013 our pet project!<\/em><\/p>\n\n\n\n

German competition act reform \u2013 state of play<\/h1>\n\n\n\n

Future\ndoctoral students are always happy to find lots of material (as are readers\nforced into home office). This week, two volumes worth reading were added to\nthe reading list for those who analyse the amendment of the German competition\nact. Firstly, the Bundeskartellamt has issued a statement on the plans of the\nMinistry of Economics. As an act in itself this is, let’s say, unusual, because\nthe Bundeskartellamt is, after all, an enforcement authority. But on the other\nhand: Where – except perhaps in D\u00fcsseldorf – are there so many experienced\ncartel lawyers as at Kaiser-Friedrich-Stra\u00dfe 16 in Bonn? Perhaps in\nVillemombler Stra\u00dfe 76 – there, in Duisdorf, the 3rd and 9th Decision Division\nof the NCA are temporarily (?) located. They reside in the former Gallwitz\nBarracks, which became the seat of the Federal Ministry of Economics in 1949. <\/p>\n\n\n\n

Yes,\nchildren, at the time when the landlord in the Gallwitz Barracks, Ludwig\nErhard, brought prosperity to Germany, Bonn was the capital of the West German\nFederal Republic and the seat of the Federal Government. The Bundeskartellamt,\non the other hand, was based at Tempelhof Airport in Berlin, which went down in\nhistory not only because of the Bundeskartellamt\u2019s headquarters, but also\nbecause of the \u201ccandy bombers\u201d that landed there. Let me explain: During the\nSoviet blockade of West Berlin in 1948\/49, the city could not be reached by\nland or water, and our friends from the United States sent planes to ensure\nsupplies – the airlift. They landed mainly in Tempelhof, but also dropped small\nparcels over the city to the cheers of the Berlin brats. I have to think of\nsuch transport routes, because if Berlin were to be sealed off again, e.g.\nbecause of a rampant virus, the Airlift would have to be reactivated and care\npackages would have to be dropped over Kreuzberg if necessary (contents: Club\nMate, vegan celery schnitzel, chia seeds).<\/p>\n\n\n\n

\"\"
Berlin kids in 1948 playing the Airlift. Picture by US Air Force.<\/figcaption><\/figure>\n\n\n\n

Back to the\nstatement\nof the enforcers<\/a>: Not only does an executive body comment on a legislative\nproject here, it is even (mildly) critical of some provisions, even though they\nwere drafted by its own supervisory authority. Wow, this is true independence!<\/p>\n\n\n\n

The other\nstatement is much thicker, it is also a little less political than the one of\nthe apolitical Bundeskartellamt: The Studienvereinigung\nKartellrecht<\/a>, the legendary German Antitrust Bar Association (GABA, not\nGAFA) has issued three volumes with its comments on abuse law, fining\/ECNplus\nimplementation and merger control\/damage claims\/reforms of the administrative\nprocedure. If you do not want to read it now, I most humbly refer you to the doctoral\ntheses available in three or four years.<\/p>\n\n\n\n

New Kids on the Blog<\/h1>\n\n\n\n

Those not into reading doctoral theses (incomprehensible!) can also listen to news on the antitrust amendment: Stephan Manuel Nagel, a partner with Taylor Wessing, has launched the \u201cCompetition Cast\u201d, the first<\/a> German-language antitrust law podcast. In episodes 1 and 2, between 20 and 25 minutes long, just right when you cycle from Villemombler Stra\u00dfe to Kaiser-Friedrich-Stra\u00dfe, the moderator discusses Section 19a of the draft bill, the regulatory style abuse control for GAFAs, with Nagel and his guest Thilo Klein from Compass Lexecon. Nagel considers the provision to be superfluous, Klein does not. That is wonderful. More to come!<\/p>\n\n\n\n

\"\"
On air: Thilo Klein and Manuel Nagel (right).<\/figcaption><\/figure>\n\n\n\n

PS: I’ve just learned that Justus Haucap, our D\u00fcsseldorf Chief Economist, is also in a podcast – Bert Losse from Wirtschaftswoche, a German business magazine, interviewed him for “Chefgespr\u00e4ch”<\/a> (nothing to do with cooking) and asks him about the techlash and the question whether it is time to divest Google. Hope you are able understand German… <\/p>\n\n\n\n

The US DoJ at work<\/h1>\n\n\n\n

A new\nplayer in lobbying is apparently the Antitrust Division of the Department of\nJustice in the USA. Under Makan Delrahim (or rather under You know who<\/s> Donald\nTrump) the division has massively increased its amicus curiae interventions. As\nin Germany, the antitrust authority can intervene in private litigation on\nantitrust matters \u2013 in our country this is regulated in Section 90 of the\nGerman Act against Restraints of Competition (ARC) (and since the 9th amendment\nto the ARC, it is also possible in disputes on unfair practices, not just\nantitrust). In Germany, the Bundeskartellamt intervened in 20 cases in 2017 and\n2018. As far as I know, these cases are typically those heard in the top level\ncourts, where the Bundeskartellamt\u2019s witty Chief Litigator J\u00f6rg Nothdurft is\nknown to be a welcome guest.<\/p>\n\n\n\n

I guess it\nwas similar in the United States. But: The Justice Department has taken the\nstand as an amicus more frequently in 2019 than the Obama administration had in\neight years. Apparently, intervention is already taking place in lower courts. According to the Financial Times<\/a> the opinions issued in the new\nAmicus Curiae Programme have clear lines of approach:<\/p>\n\n\n\n

\u201eThe result has been a flurry of legal briefs that have pushed patent holder-friendly positions, undercut lawsuits brought by other enforcement agencies and placed the justice department on the side of Mr Delrahim\u2019s former lobbying client, Qualcomm, the chipmaker.\u201d<\/p><\/blockquote>\n\n\n\n

David\nCicilline, who heads the relevant subcommittee in the US House of\nRepresentatives, already protested in May last year<\/a>. <\/p>\n\n\n\n

For me, this\nstory shows two things: How good it is to have independent antitrust\nauthorities and how good it is to have good judges who can resist the\ninsinuations, if necessary from their own expertise.<\/p>\n\n\n\n

Rail Cartel II<\/h1>\n\n\n\n

Hot off the\npress, I have just received the ruling of the German Federal Court of Justice (Bundesgerichtshof<\/em>) on the Rail Cartel II<\/em> (Case KZR 24\/17). The PDF\nstill smells of printer’s ink. But perhaps it is also the ink from blackening\npersonal details… It is too early for an evaluation of the content of this damages\ncase in private enforcement, especially since the cartel senate’s composition\nof the judgement was different from that of the Rail Cartel I<\/em> case, which caused quite a stir. At issue was a\nruling by the Jena Higher Regional Court (Case No. 2 U 583\/15), in which Th\u00fcringerwaldbahn<\/em> was affected. The Bundesgerichtshof<\/em> overturned the Jena\nCourt and referred the case back. In Jena, the obligation to pay damages had\nbeen established on the merits (not yet regarding the specific amount of\ndamages). The Bundesgerichtshof<\/em> gives\ndetails on how to apply the prima facie assumption of evidence regarding the\ndamage. <\/p>\n\n\n\n

What is\nnoteworthy though is what we call the \u201csailing instruction\u201d at the end of the\njudgment. This is usually a small part where the higher court referring back to\nthe lower one gives some guidance how to deal with the case when it now comes\nto second hearing. As I recall, this is usually roughly on the same level as\nthe \u201csailing instruction\u201d, given in Homer\u2019s Odyssey<\/em>\nby witch-goddess Circe on how to navigate between the six-headed monster Scylla<\/a> and the whirlpool Charybdis<\/a>:<\/p>\n\n\n\n

\u201c\u2018But the other cliff, thou wilt note, Odysseus, is lower\u2014they are close to each other; thou couldst even shoot an arrow across\u2014and on it is a great fig tree with rich foliage, but beneath this divine Charybdis sucks down the black water. Thrice a day she belches it forth, and thrice she sucks it down terribly. Mayest thou not be there when she sucks it down, for no one could save thee from ruin, no, not the Earth-shaker. Nay, draw very close to Scylla’s cliff, and drive thy ship past quickly; for it is better far to mourn six comrades in thy ship than all together.\u2019\u201d<\/p><\/blockquote>\n\n\n\n

That is\nshort and gripping (here in the translation by A.T. Murray). The Bundesgerichtshof\ngoes a little bit further and obviously really wants to make sure that the\nlower court gets it right now: The “sailing instruction” is about 10\npages long. Ship ahoy!<\/p>\n\n\n\n

What\u2019s important in life again?<\/h1>\n\n\n\n

It was hard\nto catch a breath in 2020 and to reconsider what happened last year. Yet,\nluckily this review of the past year had already been undertaken by the\npersonalities in our Antitrust Advent Calendar<\/a> who did an excellent job. My team\n(who have been instrumental in this work) and I are still very proud of this\ncollection of top-class antitrust lawyers of the younger generation plus four\nexperienced legends, namely Deborah P. Majoras, Christopher Bellamy, Wang\nXiaoye and Eleanor Fox. In this context, the sentence of an older colleague of\nmine came to mind again, who once said: As a scientist (and probably in any\nprofession) there are the “formative years”, and the ideas,\npersonalities and ways of working that you take up during these years – at the\nbeginning of your career \u2013 will accompany you for the rest of your life. “Lucky\nyou”, he laughed, “if you have been exposed to a good idea at that\nage that will carry you for 40 years!\u201d<\/p>\n\n\n\n

Oh, another\nidea for<\/s> from 2019: CoRe Blog\u2019s Friso Bostoen nominated the books you should have read<\/a> in 2019. The good thing with this\npaper stuff: It\u2019s still there!<\/p>\n\n\n\n

Bloody business<\/h1>\n\n\n\n

I actually wanted\nto add from 2019 what had been left over. For example this: I have a soft spot\nfor antitrust law in the blood transfusion sector and I wrote the seminal (and\nactually only) paper on that in German: ZWeR 2008, 193<\/a>. I am interested in this topic\nbecause I dealt with it during my time at the Bundeskartellamt<\/em>, and because I always find it interesting to look at\nthe places where competition does not come to full bloom. This is often the\ncase in the non-profit sector. Now, unfortunately this is necessary, I would\nlike to make this clear right away: Non-profit organisations do a great job,\nthey are very important etc.<\/p>\n\n\n\n

\"\"
It’s ketchup only.<\/figcaption><\/figure>\n\n\n\n

Now the\n“but”: The more well-known non-profit organisations in Germany are\noften also entrepreneurs, i.e. they offer goods and services on the market. Take\nblood donation as an example: In Germany, donating blood is heavily regulated.\nIt is generally forbidden to pay people for donating blood (exceptions apply). This\nmeans that private companies in the field have difficulties getting that most\nimportant input, namely human blood, while one non-profit organisations,\narguing from a moral high-ground, is very succesful in motivating people to\ndonate voluntarily and without a significant compensation. Yet, in the next\nstep things turn completely commercial: Blood is processed to blood products,\nthese are sold to hospitals and others. Now, guess how highly concentrated that\nmarket is thanks to the excellent position on the blood donations \u201cmarket\u201d. The\ncharitable organisation (or rather its entrepreneurial part that is of course\nexempted from the usual taxation etc.) has a quasi-monopolistic position. I\nfind there is a certain gap between the image evoked with blood donors and the business\nmanners on the downstream market. It tastes a bit like the lemon squirt in a\nBloody Mary.<\/p>\n\n\n\n

Now, last\nyear there was a discussion<\/a> about the supply of blood plasma,\nwhich seems to be insufficient in supplies. Or is it? In an answer to a\nquestion in Parliament, the German government did not see any cause for concern.<\/a> The S\u00fcddeutsche Zeitung<\/em> wrote in its issue on 7.10.2019 that the price\nof blood plasma products (“liquid gold”) had risen by 30% last year\nalone.<\/p>\n\n\n\n

Merger Control for Hospitals <\/h1>\n\n\n\n

At the Bundeskartellamt\nat the time, we examined the merger of blood donation services and the\ncentralisation of laboratories processing blood. I instantly understood when\nlooking into the sector that there may be productive efficiencies if blood\nbanks merge. Yet I also understood that it is problematic for reasons of\nsecurity of supply: If there is a case of contamination supply will collapse completely\nif the one and only lab has to close down. Just mentioning this in times of\nviruses and of discussions in Germany how to regulate merger control for\nhospitals. <\/p>\n\n\n\n

Auditing the auditors<\/h1>\n\n\n\n

Another\nmarket that is highly concentrated (but far from non-profit) is that of\nauditors. In a dossier with the headline “Connect 4”,<\/a> the S\u00fcddeutsche Zeitung examined\nthe market power of the Big Four accountants. That was in February 2019 (Come on, Podszun, enough of coming to terms\nwith the past! \u2013 Yes indeed, just this one more!<\/em>)<\/p>\n\n\n\n

All\ncompanies listed in the German DAX, according to the newspaper at the time, are\naudited by KPMG (53 %), Pricewaterhouse Coopers (30 %), Ernst & Young (13,3\n%) and Deloitte (3 %). The newspaper concludes its report on the oligopoly of\nbig accountants by quoting the Big Four as “too few to fail”. If they\nwere regulated or even broken up, there would be no one who could take over\ntheir essential task, namely providing the essential services and controls to\ncompanies. <\/p>\n\n\n\n

I do not\nsubscribe to that “too few to fail” vocabulary, btw. There are many\ncompanies in corporate heaven who thought they were irreplaceable.<\/p>\n\n\n\n

The news, now<\/h1>\n\n\n\n

A quick\nlook at 2020: The Bundeskartellamt\u2019s first official act this year was to impose a fine of 154 million \u20ac on<\/a> wholesalers of plant protection\nproducts for price agreements which ran between 1998 and 2015. Andreas Mundt is\nquoted in the press release as saying:<\/p>\n\n\n\n

\u201eEspecially during the first few years, some companies simply used the agreed price list to set their own prices and basically just added their respective company logo to the final list.\u201c<\/p><\/blockquote>\n\n\n\n

That’s just\nefficient and saves you paying for helping hands in forming the cartel! Among\nthe fined companies is the Bavarian BayWa<\/em>,\na monument of Bavaria, founded in 1923 as \u201eBayerische Warenvermittlung\nlandwirtschaftlicher Genossenschaften AG\u201c. The agricultural trading\ncompany was (or is?) a powerhouse in Bavarian agriculture and politics, and it\nis not the first time<\/a> that a breath of scandal is in the\nair. Every cartel is scandalous, of course. But this case is peculiar: BayWa is\nlargely owned by cooperatives of farmers in Bavaria and others in the business,\nall on that level of cooperative (\u201cGenossenschaft\u201d), a particular German form\nof entrepreneurial organisation with a lot of solidarity and lovey-dovey\ninvolved. Now, if the trader sells pesticides at a higher price this hits\nprimarily farmers \u2013 essentially, that is a rip-off of your comrades and owners.\n<\/p>\n\n\n\n

\"\"
This legendary band Bierm\u00f6sl Blosn (with Gerhart Polt, right). Photo by Wikipedia User Usien under licence CC-BY-SA-3.0<\/a>.<\/figcaption><\/figure>\n\n\n\n

I picked\nBayWa from the list of cartelists for another reason. It gives me the\nopportunity to post a video of a real classic: Bierm\u00f6sl Blosn<\/em>, another Bavarian institution, an alternative music\nband that served as the antipope to the long-time ruling CSU\/BayWa\/FC Bayern-complex\nin Bavarian, once caused a stir with a very own version of the Bavarian anthem.\nInstead of \u201cGott mit dir, du Land der Bayern\u201d they rhymed \u201cGott mit dir,\ndu Land der BayWa<\/a> \u201d. (May the Lord be with you, Land of\nBaywa). <\/p>\n\n\n\n

Bierm\u00f6sl\nBlosn wrote this little song in 1979, and when the text was printed in a\ntextbook for 8th grade school, the Bavarian Ministry of Culture had the edition destroyed<\/a>. Today the song would go viral with\nsuch publicity. The asocial media, they might have their good points.<\/p>\n\n\n\n

Have a nice weekend!<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Carnival is over, we were still allowed to go outside the door in the Rhineland then. In the meantime, everything has moved to home office. Now, what happens if you are no longer allowed to see your local bookstore since you may bump into someone coming home from a conference in China? Before you run out of stock of reading material, Rupprecht Podszun has hoarded news and written down what was still on his mind for 2019 and 19a. Here…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":3435,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[240],"tags":[314,309,3,310],"class_list":["post-3434","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-ssnippets","tag-amicus-curiae","tag-blut","tag-gwb-novelle","tag-krankenhausfusionskontrolle"],"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\/3434","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=3434"}],"version-history":[{"count":7,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/3434\/revisions"}],"predecessor-version":[{"id":3445,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/3434\/revisions\/3445"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media\/3435"}],"wp:attachment":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media?parent=3434"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/categories?post=3434"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/tags?post=3434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}