Germany

On October 26, 2022, the German government permitted (with conditions) an investment by Chinese state-owned COSCO Shipping Group (“COSCO”) in one of Hamburg’s four shipping container terminals. Pursuant to foreign direct investment (“FDI”) laws, the German Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz, “BMWK”) had been notified of the proposed acquisition by COSCO of a 35% minority interest in the port terminal, a strategic location on the German coastline. The BMWK ordered that COSCO’s acquisition of voting rights must remain below 25%. The details of the decision remain confidential, but the BMWK justified its partial prohibition on the grounds that the acquisition of 35% as notified would constitute a “threat to public order and security”. According to the BMWK’s press release, the partial prohibition decision prevents COSCO from acquiring a ‘strategic’ shareholding, and reduces the acquisition to a mere financial participation. As a safeguard in this respect, the decision contains provisions prohibiting COSCO from acquiring any additional influence, for example, through a grant of rights that would be atypical for a holder of a less than 25% interest. Furthermore, under the German FDI regime, any follow-on acquisition of additional voting rights by COSCO would be subject to a new notification requirement.Continue Reading COSCO FDI Review: Germany partially prohibits Chinese investment in a Hamburg container terminal – Spotlight on minority investments

On 22 January 2021 the German Ministry for Economic Affairs and Energy (“BMWi”) published a draft for the 17th amendment (“Draft Amendment”) of the Foreign Trade and Payments Ordinance (“AWV”). While the Draft Amendment remains subject to comments and further consultation, it already provides early guidance on sectors that may come under close Foreign Direct Investments (“FDI”) scrutiny in future. Among other changes, the Draft Amendment defines a number of additional sensitive activities triggering mandatory and suspensive filing requirements.

The new rules can be expected to have significant impact on transactions in particular in the technology sector and will lead to a significant increase in mandatory FDI filings in Germany.
Continue Reading Significant Revamp of German FDI Regime – German Government Presents New Rules on FDI Screening

The German government has proposed a new draft bill reforming the current foreign direct investment (“FDI”) regime, which is likely to have a significant impact on all M&A transactions involving acquisitions of 10% or more of the voting rights in German companies active in “critical infrastructures” and “critical technologies” by any non-EU investors. Under the revised regime, such transactions will automatically be subject to a period of suspension until clearance is granted.
Continue Reading German Government Decides on Tightening the National FDI Screening Regime

On 7 October 2019, the German Ministry of Economics and Energy published the draft Act on Digitalisation of German Competition Law (the “Draft Act”).  The Draft Act proposes several key changes to the current competition rules in Germany, with an emphasis on what the proponents present as novel challenges that arise in digital markets and in connection with data.  Subject to further revisions by the Federal Government, the Draft Act would enter into force during the second half of 2020.
Continue Reading German Ministry of Economics and Energy publishes the draft Act on Digitalisation of German Competition Law

The German Monopolies Commission (Monopolkommission), an independent body advising the German federal government and legislature on competition law and policy, recently published its Twenty-second Biennial Report (“Report”) in which it outlined recommendations to adapt the German legal framework to account for what it characterized as new competition challenges faced by the increasing and irreversible digitisation of many parts of the economy (please see the Summary Report here and Press Release here, both available in English). Of particular interest is the Monopolies Commission’s proposed approach to anti-competitive algorithm-based pricing.
Continue Reading The German Monopolies Commission’s Proposals Regarding Pricing Algorithms

On 6 October 2017, the German Competition Authority (the “FCO”) launched a new series of papers on “Competition and Consumer Protection in the Digital Economy” with its first paper on “Big Data and Competition” (available in German) (the “Paper”). The FCO sets out its view of the specific characteristics of digital, data-based markets, the role data may play in the competitive analysis of such markets and the importance of data protection in competition law proceedings.
Continue Reading The Bundeskartellamt Publishes a Paper on Big Data and Competition

On 20 March 2017, the German Federal Ministry for Economic Affairs and Energy (the “Ministry”) published its Digital Platforms White Paper (the “White Paper” and launched a dedicated web portal), reflecting at least in part the results of its consultation on its Green Paper on Digital Platforms. The White Paper sets out several proposals for digital policy to facilitate growth of digital platforms on the basis of fair competition while guaranteeing individuals’ fundamental rights and data sovereignty. The Ministry appears to start from the premise that digital platforms sometimes fall outside the scope of German competition, consumer protection and commercial laws, such that the White Paper seeks to address this perceived enforcement gap.

Continue Reading German Ministry for Economy Publishes a White Paper on Digital Platforms

With the European Commission’s recent Digital Single Market (“DSM”) Strategy for the European Union (“EU”) announcements (including several legislative proposals and a Communication on Online Platforms and the Digital Market), a number of the Member States are also very active on the issues.

Since the German Monopolies Commission’s 2015 report on digital markets (see, our analysis here), the German Federal Cartel Office (“FCO”) launched an internal “Internet Platform Think Tank”.  The think tank’s initial work led to the publication, on 9 June 2016, of a Working Paper on “The Market Power of Platforms and Networks” (the “Working Paper”, a summary in English, and a presentation of its findings and recommendations).

Continue Reading German Competition Authority Publishes a Working Paper on “Market Power of Platforms and Networks”

Digital markets are currently the focus of much attention in the European Union (“EU”).  The European Commission recently unveiled its Digital Single Market Strategy, which incorporates DG COMP’s e-commerce sector inquiry.

The issue of the regulation of digital markets, potentially beyond the application of competition law, is also being discussed at national level.  On 1 June 2015, the German Monopolies Commission (“MC”) published its report on digital markets (“Competition Policy: The challenge of digital markets”), with a summary in English.  Generally, the MC takes the position that there is no need for a significant modification of the current legal framework, but suggests increased enforcement of the rules.  In an interesting coincidence of timing, Commissioner Vestager recently expressed caution about adopting new regulation of online platforms that might be overtaken by market developments.  This post provides an overview of the key elements of the MC report.

Continue Reading German Monopolies Commission Publishes its Report on Digital Markets

Early this month, the German Federal Supreme Court (BGH) published its judgment in the appeal filed by Melitta Europa GmbH & Co. (Melitta Europa) against the 2014 judgment of the Düsseldorf Higher Regional Court (OLG). The OLG confirmed a 55 million euro fine imposed in 2009 by the German Federal Cartel Office on Melitta Kaffee, finding that, economically, Melitta Europa was Melitta Kaffee’s legal successor and, as such, was liable to pay the fine.

Continue Reading German Federal Supreme Court confirms successor liability for coffee roasters in spite of corporate restructuring