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Did you know that exporting lipstick under the wrong circumstances could get you in serious trouble? As innocent and trivial as they may seem, lipstick and many more so-called fast moving consumer goods (FMCG) are often covered by several export restrictions. As a result, the export of these goods may be subject to authorisation requirements or entirely restricted, with hefty fines and other sanctions associated with non-compliance. In this instalment of our briefing series on FMCG, we highlight how export control law applies to FMCG and what pitfalls you should be wary of.

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On 29 November 2022, the German Federal Court of Justice (FCJ) announced its eagerly awaited ruling on the follow-on lawsuit regarding the so-called “drugstore products cartel” (Case No. KZR 42/20). The full-text version of the judgement was published today. With this judgement, the FCJ explicitly clarifies that in the case of an anti-competitive exchange of information, there is a factual presumption that such information exchange caused a damage.

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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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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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Reducing harmful effects on global climate and the environment, protecting human rights in global supply chains and ensuring good working conditions have taken the political scene as overarching goals in the third millennium. Consumer and investor choices are increasingly based not only on cost but also on sustainability considerations. But are “green business models” reconcilable with competition law?

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Four years after the Brexit referendum, the EU and the United Kingdom have reached an agreement on the EU-UK Trade and Cooperation Agreement (TCA), which follows the Brexit Withdrawal Agreement. BLOMSTEIN presents the key contents of the new trade agreement in a briefing series. In Part 1, we have looked at the implementation and substantial changes in the EU-UK relationship. Part 2 focuses on the trade in goods.

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Our contribution to the new GCR tool on Vertical Restraints, which has just been released, is now online and available free-to-view on the GCR website. We have contributed the Germany section, which covers legislation and cases on various topics, including Resale Price Maintenance (RPM), Most Favourite Nation Clauses (MFNs), Non-Compete Obligations, Territorial Restrictions, and Selective Distribution. The tool is a helpful reference for many other jurisdictions worldwide with contributions from selected competition specialists .

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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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The ECJ is about to clarify how excise duties on beer are calculated and whether there is a specific tax duty on flavoured beer. In a request for a preliminary ruling, a Polish court asked for clarification whether substances added after fermentation (e.g. sugar, flavours) may be taken into consideration in the overall calculation of the beer tax. The Advocate General took the position that this should not be the case and that substances added after fermentation should not increase excise duties.

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Can suppliers prohibit their authorised distributors from selling luxury products on third-party platforms such as Amazon or eBay? In its judgement of 6 December 2017 (Case C-230/16 – Coty), the European Court of Justice (ECJ) finally had the chance to shed some light on this highly-debated issue. Both suppliers and distributors have waited with great anticipation for a clarification from Luxembourg. The ECJ now took a supplier-friendly stance and confirmed that platform bans for luxury goods are not per se anticompetitive.

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