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After the Digital Markets Act (DMA) entered into force in November 2022, the European Commission is now hosting a series of workshops to consult stakeholders on specific questions regarding the DMA’s implementation. The first workshop dealt with the prohibition on self-preferencing in Article 6(5) DMA and focused on the interpretation of the provision as well as possible solutions to ensure compliance with it in practice.

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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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On 28 November 2022, the Council has finally approved the regulation on foreign subsidies distorting the internal market (Foreign Subsidies RegulationFSR). The FSR was adopted with only minor changes to the provisional agreement of the European Parliament and the Council of 11 July 2022. It will enter into force 20 days after its publication in the EU’s Official Journal, so likely still this year. Most of the new rules will be directly applicable after 6 months, but the new notification requirements for M&A transactions and public procurement procedures will apply 9 months after entry into force of the FSR, i.e. around the start of Q4 2023.

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The latest sanctions package, adopted on 16 December 2022, constitutes the EU’s ninth round of sanctions since the beginning of Russia’s aggression against Ukraine. As in the case of previous packages, the EU has sanctioned further individuals and entities as well as introduced additional trade and sector-specific restrictions. These new measures are effective as of 17 December 2022. We highlight the most important aspects of these latest changes below.

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As the Russian aggression against Ukraine continues, the EU has consistently expanded its sanctions against Russia. Whereas legal action by the EU has so far been limited to the extension of individual and sector-related sanctions, plans have ripened to increase the effective implementation of these sanctions. The EU Commission has now presented a draft Directive to harmonize the definition of criminal offences and penalties for violations of the restrictive measures within the EU. In addition, the EU member states, together with the other G7 states, have agreed on an oil price cap, which is meant to reduce Russian revenues. Finally, the imposition of further restrictions is currently under discussion. It would be the ninth package of sanctions against Russia since the beginning of the war in early 2022. We have summarized these three crucial developments in EU sanctions law below.

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On 23 November 2022, the Federal Cartel Office (FCO) declared that – for the time being – it does not object to the distribution of Meta VR headsets in Germany. The reason is that Meta has voluntarily refrained from linking its VR headsets to Facebook accounts. This case showcases the first application of Sec. 19a of the Act against Restraints of Competition (ARC) with the effect that a Big Tech company changed its business conduct. In the meantime, further cases are pending before the FCO with the outcome eagerly awaited.

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In its May 17, 2022 ruling, the German Federal Fiscal Court (Bundesfinanzhof, BFH) confirmed that it is irrelevant to determine the customs value for imported goods if the transaction value is adjusted subsequently (Case No. VII R 2/19). The ruling marks the end of the Hamamatsu case, in which the European Court of Justice (ECJ) already had taken a position (Judgment of 20 December 2017, C-529/16). The core of the proceedings hinges on whether transfer pricing adjustments in cross-border transactions between affiliated companies are to be taken into account retrospectively when determining the customs value.

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On the 26th of October, the German Federal Government published the draft text of the Second Sanctions Enforcement Act (Sanktionsdurchsetzungsgesetz II – SDG II), which is set to pass by the end of this year. The proposal is the second part of the previously planned two-part legislative package and builds on the First Sanctions Enforcement Act (Sanktionsdurchsetzungsgesetz I – SanktDG I), which came into force in the end of May earlier this year.

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On 1 January 2023, the “Act on Corporate Due Diligence Obligations in Supply Chains” (the “Act”) will enter into force for companies with more than 3000 employees in Germany. In order to specify the obligations under the Act, the Federal Office for Economic Affairs and Export Control (“BAFA”) published several guidance documents, most recently one on the complaints procedure (in German) under Sec. 8 and 9 of the Act. In this briefing, we summarize the main specifications and recommendations provided in the guidance document.

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As of January 1, 2023, companies that fall under the scope of the German Supply Chain Due Diligence Act (LkSG) will be subject to a reporting obligation. To facilitate the timely and complete implementation of this obligation, BAFA has now published a catalogue of questions that provides a detailed insight into the structure and content of the reporting expected by the authorities. In the following, we briefly outline the most important components and added values of this questionnaire.

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