{"id":6662,"date":"2021-10-06T15:19:20","date_gmt":"2021-10-06T13:19:20","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=6662"},"modified":"2021-10-07T13:42:35","modified_gmt":"2021-10-07T11:42:35","slug":"conference-debriefing-26-wuw70","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2021\/10\/06\/conference-debriefing-26-wuw70\/","title":{"rendered":"Conference Debriefing (26): WuW70"},"content":{"rendered":"\n

In 1951, seven years before the German competition act entered into force, WuW was founded, the oldest German competition law journal. The editors (of which our reporter is one) staged a conference in Berlin to mark the 70th<\/sup>anniversary \u2013 with awards, expected honoraries and unusual suspects. If you want to have an idea how these Germans think about antitrust, Rupprecht Podszun<\/strong> has a Conference Debriefing for you!<\/em><\/p>\n\n\n\n

Name of Event:<\/strong><\/span> \u201c70 Years Wirtschaft und Wettbewerb<\/em> – Join the Future of Competition\u201d \u2013 it was a kind of birthday party for WuW whose name roughly translates into Competition and the Economy. <\/p>\n\n\n\n

Topic:<\/strong><\/span> One day of running through the most pressing issues of antitrust. Felt a bit like looking into a journal issue (without the tedious and footnote-loaden<\/s> erudite academic articles).<\/p>\n\n\n\n

Place & Time:<\/span><\/strong> 5 October 2021, in person<\/em>, in a Berlin hotel<\/p>\n\n\n\n

Host:<\/strong><\/span> WuW, formerly published by Handelsblatt Fachmedien was sold to Fachmedien Otto Schmidt, as Christoph Bertling, the publisher, explained. He left hosting to professor Daniel Zimmer of Bonn University, one of the editors.<\/p>\n\n\n\n

Audience:<\/strong><\/span> Very many faces that I would love to call familiar \u2013 yet I had only seen them online, if at all, in the past two years, so it was a bit like a reunion. I spent my first coffee with Christina Oelke (VAUNET) and Sascha Dethof (Fieldfisher), the lunch break with Kurt Markert, a legendary former competition official, I had economists Rainer Lademann and Frank Maier-Rigaud sitting right behind me, and when I turned my head, antitrust lawyers like Katharina Kolb, Florian Haus, Frank Montag or Markus Wirtz came into view. Just to give you the flavour.<\/p>\n\n\n\n

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WuW: Editors and members of the advisory board: Florian Wagner-von Papp, Jens-Olrik Murach, Daniela Seeliger, Wolfgang Heckenberger, Ellen Braun (back row from left); Thilo Reimers, Daniel Zimmer, Petra Pohlmann, Rupprecht Podszun, Frank Maier-Rigaud (first row from left).<\/figcaption><\/figure>\n\n\n\n

If this is the big German competition law event, may I guess that Andreas Mundt gave the first talk?<\/h2>\n\n\n\n

Bingo! And he looked very professional. You were not able to spot that only the night before news broke that his best friend Isabelle de Silva will step down as head of the French competition authority on 13 October 2021.<\/p>\n\n\n\n

Pardonnez-moi, s\u2019il vous plait<\/em>? Had not heard that!<\/h2>\n\n\n\n

Pas grave.<\/em> The news transpired when all Facebook networks were down. It may have slipped your timeline. It comes as a surprise that the mandate of de Silva was not extended, and rumour has it that this has to do<\/a> with her stance on a media merger in France that President Macron wishes to see confirmed, not banned.<\/p>\n\n\n\n

I thought such direct political interventions into competition law application were yesterday-ish.<\/h2>\n\n\n\n

It is rumour only! Since you mention politics: Daniel Zimmer, the lovely conf\u00e9rencier<\/em> who knows to combine his huge wisdom with a mild air of irony, reminded the audience that the competition law journal started as early as 1951: At the time, Eberhard G\u00fcnther, then the Thorsten K\u00e4seberg of the day, had presented the first draft of the German competition act, the GWB. It took seven years to push through this act that only came into force in 1958. In that \u201cSeven-Years\u2019-War\u201d, German industry was reluctant to accept antitrust laws in the \u201cland of cartels\u201d<\/a>, and the pros and cons was discussed in that WuW journal.<\/p>\n\n\n\n

Surely, German industry loves the GWB now?<\/h2>\n\n\n\n

Well, yes, sort of. It was a nice fit with that history, however, that so much need for political reform transpired throughout the day. The Bundeskartellamt\u2019s president Andreas Mundt started the day, giving another one of his very well-mannered, but highly political speeches.<\/p>\n\n\n\n

Oh, a kind of wish list for the new government? <\/h2>\n\n\n\n

His top priority is the Digital Markets Act, and this must still be settled with the incumbents. Economics Minister Peter Altmaier of the outgoing Merkel government holds talks with Margrethe Vestager today. Thorsten K\u00e4seberg, from the Ministry of Economics, said it was \u201ccrunch time\u201d now at Brussels for negotiators. Allegedly, Andreas Schwab, the rapporteur for the DMA, has 1000 requests for changes on his desk from the EU Parliament only! For Mundt and K\u00e4seberg a \u201cred line\u201d is that the DMA leaves room for the application of section 19a of the GWB. Also, national authorities need to be involved in enforcement in a better way \u2013 you may remember the second paper<\/a> presented by Germany, France and the Netherlands on this issue.<\/p>\n\n\n\n

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Thorsten K\u00e4seberg<\/figcaption><\/figure>\n\n\n\n

We knew that much.<\/h2>\n\n\n\n

What I found interesting was the new focus on merger control. Mundt stated boldly: \u201cKiller acquisitions are for real, and we can prove them in many cases.\u201d K\u00e4seberg said: \u201cGoogle\/Doubleclick<\/em> and Facebook\/Whatsapp<\/em> were wrongly decided. The Commission was probably under pressure from the Court and thus reacted too lax.\u201d Mundt expects new rules from the new German coalition government (may still take a while) on merger control. K\u00e4seberg advocates new notification requirements in the DMA for gatekeepers. He had solicited an expert opinion<\/a> by law professors Jens-Uwe Franck, Giorgio Monti and Alexandre de Streel who had confirmed that such an amendment would even be possible on the basis of the competences from Art. 114 TFEU.<\/p>\n\n\n\n

I thought merger control was a matter of competition law and therefore needed Art. 103 TFEU as a legal basis.<\/h2>\n\n\n\n

According to three professors you are wrong: \u201cWe submit that [it would only be an illegal circumvention of conditions and procedures of the Treaty] (if at all) when the changes to the merger framework, in casu <\/em>the introduction of a new notification obligation, would contradict normative decisions enshrined in the EU Merger Regulation. This is not the case when the application of the \u2013 otherwise unchanged \u2013 merger control is extended beyond Article 1 EUMR. (\u2026) In sum, we may conclude that a new notification obligation could be introduced via the DMA (on the basis of Article 114 TFEU).\u201d<\/p>\n\n\n\n

Oh, thank you. But doesn\u2019t the new reading of Art. 22 of the Merger Control Regulation solve that issue for good?<\/h2>\n\n\n\n

Haha, please imagine that hard laughing emoji here! Daimler\u2019s inhouse lawyer Rainer Crampen devoted his entire talk to pointing at the many flaws of this solution that the EU Commission came up with to catch more mergers<\/a>. Thorsten K\u00e4seberg added he would rather prefer to have the full debate on merger control than have this kind of merger control through the backdoor. And Wolfgang Heckenberger of Siemens called it \u201cthe high arts of voodoo mathematics\u201d: An incompetent authority can make an even more incompetent authority competent. The Court of Justice will be able to check this kind of mathematics in the Illumina\/Grail case<\/a> which is pending. <\/p>\n\n\n\n

\u201cVoodoo mathematics\u201d \u2013 love that!<\/h2>\n\n\n\n

Oh, the inhouse lawyers were on fire, really! Fancy some more?<\/p>\n\n\n\n

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Inhouse fury: Christiane Dahlbender, Wolfgang Heckenberger, Thilo Reimers<\/figcaption><\/figure>\n\n\n\n

Go!<\/h2>\n\n\n\n

Thilo Reimers of Deutsche Bahn, speaking in a panel moderated by professor Petra Pohlmann, said they were all craving for more legal certainty in cooperations. Now, Thilo is a very polite person, others were more outspoken. Mars\u2019 counsel Christiane Dahlbender for instance was in utter disbelief that according to the new VBER draft manufacturers were no longer allowed to present their products properly to customers when they ran an online shop, too. Heckenberger had his blood pressure racing with all the new requirements: He called it \u201cinsane\u201d (\u201cwahnwitzig\u201d in German) that companies of 50+ staff need to provide a secure channel for whistleblowers now. New rules for Foreign Direct Investment (FDI) are like a conflagration (\u201cFl\u00e4chenbrand\u201d). \u201cWe are no longer able to communicate all these requirements in our companies!\u201d Probably, Europe is about to suffocate from regulatory frenzy, so he warned.<\/p>\n\n\n\n

I feel him!<\/h2>\n\n\n\n

The great thing about Heckenberger is that he has this warm Southern German accent in his voice that gives all this the special flavour of sagacity, and he shares this with Mathias Traub, antitrust head of Bosch. Traub was asked to explain how to cope with all the new international requirements as an inhouse lawyer. He echoed the words of his colleagues, but added his very own blood pressure issue: requests for information (RFI) by competition agencies in cases where the company in question is not even part of the case. He said the EU Commission recently reached a new all-time-low by sending Bosch two different RFI for one merger case with 180 pages each on the same day with a seven days deadline (mercifully extended to 10). If Christian Baudis had been in the room already, he would probably have given us antitrust folks his quizzical look.<\/p>\n\n\n\n

I\u2019ve heard the name, but who is that again?<\/h2>\n\n\n\n

Will tell you later. Let me add from the Traub-talk that he said no-poaching-agreements were a thing on his watchlist, coming to a jurisdiction near you soon, he says. Also, questioned by Daniel Zimmer, he said the Chinese antitrust authorities were acting professionally and he had not experienced political intervention there. Linklaters\u2019 Daniela Seeliger talked about compliance trainings, including the \u201ccompliance defence\u201d that she had fought hard for in the last amendment of the German competition act (and successfully!). I was not able to concentrate on what she said, however, since she picked on me in a mock dawn raid situation, and I was traumatised from that moment on. She wanted to take my computer with her!<\/p>\n\n\n\n