On 20 July 2020, the European Commission published a Communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law. It aims to provide guidance to national courts on handling confidential information in competition related litigation.

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On 17 July 2020 2020, the Foreign Trade and Payments Act (Außenwirtschaftsgesetz) entered into force (AWG-Amendment) , resulting in further tightening of investment controls. The amendment has the aim to implement the EU-Screening-Regulation 2019/452 (EU-Screening-Regulation) and corresponds to Germany’s industrial strategy 2030 (Industriestrategie 2030), which was announced in November 2019 by the Federal Minister for Economics Peter Altmaier (Bundeswirtschaftsminister). The AWG-Amendment is accompanied by an adjustment to the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, AWV), which was hastily initiated in the wake of the COVID-19 pandemic and has since come into force. A second amendment with the aim of harmonizing the AWV with the new amendment to the Foreign Trade and Payments Act (AWG) is expected for summer 2020.

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On 9 June 2020, the EUI Florence School of Regulation (FSR) hosted a webinar about the role of State aid to nuclear energy in France and Germany. BLOMSTEIN partner Max Klasse featured alongside Guillaume Dezobry (Fidal), with Professor Leigh Hancher (FSR) as moderator. A recording of the webinar can be found here.

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Retail alliances like Coopernic (including, e.g. Ahold Delhaize), AgeCore (with Colruyt, Intermarché and Edeka) or Eurelec (E. Leclerc and Rewe) have been around for a long time. They gained new attention in the past decade because of the sheer, increased number of alliances and because some open trade conflicts. Concerns on restrictions of competition and higher consumer prices were also raised in this context as well as more general negative effects, such as upsetting the balance of power, preventing farmers from getting fair prices for their products while (brand) manufacturers would suffer from heavy bargaining pressure.

Last week, the European Commission published a comprehensive report at the request of the European Parliament about the effects of buying groups and other alliances on supply chains across Europe with the aim of clarifying whether retail alliances are permitted under antitrust law or not.

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BLOMSTEIN has advised leading Chinese locomotive manufacturer CRRC Zhuzhou Locomotive Co., Ltd. (CRRC ZELC) on the merger control and foreign direct investment (FDI) aspects of its acquisition of Vossloh Locomotives GmbH (Vossloh Locomotives). Following an in-depth review, the transaction received merger control clearance from the Federal Cartel Office on 27 April 2020. The German Federal Ministry for Economic Affairs and Energy had cleared the FDI matter earlier this year, also following an in-depth review of the case.

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With the 15th amendment of the Foreign Trade and Payments Ordinance (AWV), the Federal Ministry for Economic Affairs and Energy will soon extend its control over acquisitions of German companies by EU foreign companies. The amendment is perceived as the Federal Government’s direct reaction to the COVID-19 crisis, due to its concern in large part to protect the healthcare sector. The case of the Tübingen-based company CureVac, involving a US purchaser and raising the question of the right of prohibition, may have also contributed to this development. The 16th amendment to the AWV is expected to comprehensively expand and adapt investment control in foreign trade law. It is aimed at uniformly implementing Regulation (EU) 2019/452 (*_EU Screening Regulation*_), which came into force in April 2019, and the amendment to the Foreign Trade and Payments Act (AWG) adopted already by the Cabinet on 8th April 2020. Since the latter remains under discussion in the committees of the Bundestag, the Federal Ministry for Economic Affairs and Energy has brought forward what it considers to be particularly urgent adjustments.

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Since the Federal Ministry of Justice and Consumer Protection presented a new draft of the corporate sanctions law (“Gesetz zur Stärkung der Integrität in der Wirtschaft”) on 22 April 2020, debate has flared up again about how to deal with legal violations within companies. In the past, associations and experts urged that the main objectives of the new law must be to promote compliance measures and transparency around violations within companies internally.

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The German government has been pushing for stricter national rules on foreign direct investment control. This is against the background of the “Industrial Strategy 2030” presented by Mr Altmaier, Federal Minister for Economic Affairs and Energy, in November 2019. In parallel, the EU FDI Screening Regulation 2019/452 came into force in April last year. For the first time, it sets binding requirements with respect to investment control for member States. In light of these developments, in January, the Federal Ministry for Economic Affairs and Energy (BMWi) presented a draft bill for legislation amending the Foreign Trade and Payments Act (FTPA). The German Cabinet adopted this draft in its meeting on 8 April 2020. It will now proceed to the German parliament.

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The Covid-19 pandemic is causing far-reaching changes in every area of life and business. Almost all companies and industries are affected and the legal situation changes almost daily in some areas. The European Competition Network (ECN) emphasized in a recent joint statement that the current competition rules are flexible enough to adapt to changing economic situations and need no substantial modification. This briefing provides an overview on how the Corona crisis affects competition law – and what remains unchanged – and where to find further information (see the links throughout the document). BLOMSTEIN will closely monitor and inform about further developments. If you have any questions, Anna Huttenlauch and Max Klasse will be happy to assist you at any time.

BLOMSTEIN Corona and Competition Law (31.03.2020)

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27 March 2020
The current Covid 19 pandemic has long since developed into an economic crisis, the full impact of which cannot yet be predicted. The crisis also affects those companies that are active in so-called systemically important areas and whose commitment is particularly important for the protection of public health. In the opinion of the EU Commission, it is therefore particularly important to prevent a “sell-out” of companies and technologies that are critical and key to the health sector.

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