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Starting on 1st of June 2022, contracting authorities are obliged to consult the Competition Register to determine whether one of the bidders in a public procurement procedure is listed in the Register. Although the contracting authorities will continue to decide on the outcome, i.e., whether to exclude such bidder or not based on an exclusion ground, listings in the competition register will have a considerable indicative effect.

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This week, the European Commission finally adopted its long-awaited new Vertical Block Exemption Regulation (VBER). Together with the also updated vertical guidelines, the new rules define competition law requirements for distribution and supply agreements for the next decade. When the new VBER enters into force in June, it will bring significant changes, particularly concerning e-commerce and online distribution. We summarise the most important changes.

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The European Commission’s Block Exemption Regulation for Vertical Agreements (VBER) is the most relevant guidance for the assessment of dual distribution agreements under EU competition law. Together with the accompanying Vertical Guidelines, it shapes the application of the antitrust prohibition to various distribution constellations.

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While generally, sustainability initiatives and Environmental Social Governance (ESG) become increasingly important for both consumers and investors, the line between strengthening cooperation to achieve sustainability goals and compliance with competition law remains a fine one (see also our briefing of 7 February 2021). The German Federal Cartel Office (FCO) has recently examined three sector initiatives aimed at sustainability gains. While the agency did not publish detailed decisions or case reports, some guidance can still be concluded from its findings.

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Today, 17 December 2021, is the deadline for implementing the EU Whistleblower Directive. So far, only Sweden and Denmark have transposed the Whistleblower Directive into respective national regulations; Portugal managed to pass a law by majority vote of the parliament in time, but the Portuguese transposition law will not enter into force until mid-2022. Germany, on the other hand, is threatened with infringement proceedings as the coalition partners of the old government could not agree on a first draft bill, the so-called Whistleblower Protection Act (WPA) of the Federal Ministry of Justice. However, the recently published coalition deal of the newly elected coalition picks up the issue again, so that new developments on the Whistleblower Protection Act seem to be underway. The coalition agreement commits to implement the directive, which creates a uniform legal framework for the protection of whistleblowers throughout the Union, in a “legally secure and practicable” manner. Germany plans to protect whistleblowers from legal disadvantages not only when reporting breaches of EU law, but also when reporting significant breaches of national regulations or any other significant misconduct, where disclosure is of special public interest.

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BLOMSTEIN has represented Vodafone in a successful challenge to a merger clearance of a joint venture between Deutsche Telekom and EWE AG. Following an appeal by Vodafone and complex court proceedings, on 22 September 2021 the Higher Regional Court of Düsseldorf annulled the 2019 clearance decision issued by the Federal Cartel Office for “Glasfaser Nordwest”, a joint venture to expand the fibre network in the north-western part of Germany.

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BLOMSTEIN is advising ADTRAN, Inc. (ADTRAN) on the German foreign direct investment and merger control aspects of its business combination with the network technology company ADVA Optical Networking SE (ADVA). By entering into the business combination, the companies seek to become a leader in providing end-to-end fiber networking solutions.

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When the arsenal of enforcement tools for the German Federal Cartel Office (FCO) was stocked up in January 2021 with the overhauled German competition law, bets were high which of the GAFAM would be hit first. Wasting no time, the FCO immediately put its new powers into action in two high-profile cases: Facebook came first, Amazon followed foot with an investigation announced yesterday. At the same time, the FCO has reallocated staff and resources to increase its focus on e-commerce and the digital economy and even created an entire new division for this. What should players in the digital economy watch out and prepare for?

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On 5 May 2021, the European Commission (Commission) has published its proposal for a Regulation on foreign subsidies distorting the internal market (Proposal) – eagerly and anxiously awaited both across Europe and internationally.

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Ever wondered why consumers pay different prices for the same goods in different EU member states? The European Commission (EC) thinks territorial supply constraints (TSCs) bear much of the blame. Although they have long been a regular topic of antitrust debate, investigations into TSCs have been rare. This is unlikely to stay the case: a recent study into TSCs commissioned by the EC, recent enforcement action, and the pending revision of the regulatory framework show that TSCs have become a policy focus of the EC, and national competition authorities may follow. A just-announced EC investigation into Mondelēz International, one of the world’s largest snacks companies, for alleged breaches of the competition rules through TSCs may be a sign of things to come. We outline why TSCs are in the antitrust spotlight and what companies should expect from competition enforcers in the future.

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