The Federal Cartel Office recently published its Standards of Effective Compliance. These are highly relevant right now because sufficient compliance measures have been legally recognised as a factor which can lead to reduced fines since the amendment of the Act Against Restraints of Competition earlier in 2021. The standards are therefore also valuable for the question of which measures are necessary to exonerate company management.
A recent High Court case has provided reassurance that the courts will continue to respect and enforce clearly drafted exclusion and limitation of liability clauses, even broad ones, unless to do so would have the effect of excluding all liability for all breach or would reduce one party's obligations to a mere declaration of intent. This case highlights and reaffirms the importance of precise wording when drafting commercial contracts.
According to the latest British Franchise Association-NatWest survey of the franchising sector in the United Kingdom, around one-third of franchisees now run more than one franchise business, compared with just one-quarter in 2013. The trend is not just towards multi-unit franchising, but also towards multi-unit and multi-brand franchising. This article examines these risks and rewards from the perspective of both franchisors and multi-unit, multi-brand operators (also known as 'MUMBOs').
The Federal Cartel Office (FCO) recently initiated proceedings against a household appliance company based on complaints raised by market participants over certain clauses of the company's new distribution model. The FCO examined whether the terms and conditions of sale discriminated against online retailers. Following the FCO's intervention, the company agreed to delete or adapt certain clauses. Consequently, the FCO terminated its proceedings against the company.
The Federal Cartel Office has begun operating the competition register. The competition register enables contracting authorities to check nationwide, by means of a single electronic query, whether a company has committed relevant legal violations and whether there are grounds for exclusion from public procurement procedures.
Successful franchisor-franchisee relationships which stand the test of time share the common traits of mutual respect, good communication, a convergence of interests, an appreciation of what drew the parties together in the first place and, perhaps most importantly, a willingness to make up. However, even the biggest and most successful franchise networks run into difficulties. This article considers common issues faced by well-established and successful franchisors and how to best handle or avoid them.
Franchising is a complex area of law and, aside from ensuring that a business is franchisable and ready to franchise, choosing the right franchise lawyer is a key strategic decision. The right specialist advice can maximise the chances for long-term success and minimise the risks of incurring big expenses and liabilities down the road. However, choosing a franchise lawyer who is a good fit can be difficult.
An amendment to the Act against Restraints of Competition recently entered into force, regulating issues relating, in particular, to the steady advance of digitalisation. Other important amendments relate to merger control. In the context of adapting competition law to the ongoing digitalisation, a notable change is that the Federal Cartel Office can preventively prohibit certain types of conduct by companies which have an overriding importance for competition across markets.
In two decisions, the Saarbrücken Regional Court rejected the liability of management bodies for cartel fines imposed on a company. Bathroom equipment manufacturer Villeroy & Boch claimed damages from four ex-board members with regard to a fine imposed by the European Commission for the claimant's participation in the bathroom fittings cartel (2010) and legal fees.
The Federal Cartel Office (FCO) has given further advice on the development of a business-to-business internet platform in a recently published case report on OLF Germany. The FCO's main concerns are the increased transparency between competitors on the platform and the transfer of information to OLF's shareholder Shell.
School closures, social distancing, remote learning and a reduction in international travel and student exchange for the foreseeable future are all placing a significant strain on businesses in the education sector. Nevertheless, with every crisis comes opportunity. For the education sector, international expansion will be an important way of securing long-term financial viability through the creation of new revenue streams and the development of new edtech innovations.
Under pressure from the Federal Cartel Office (FCO), guitar manufacturer Alhambra has distanced itself from influencing the selling prices of wholesalers and distributors. The FCO investigated Alhambra on the suspicion that it had exerted pressure on wholesalers and distributors to comply with minimum prices on the German market and urged distributors to raise their retail prices. The FCO has been active in the field of price fixing in recent years and this article provides a historic round-up of cases.
The Federal Court of Justice recently issued a decision on the statute of limitations for bid-rigging agreements. According to the court, the limitation period does not begin with the conclusion of the contract resulting from the anti-competitive agreement; rather, it begins later with the complete execution of the contract.
In Germany, any form of pressure not to reduce prices below a certain level (including the granting of advantages) is prohibited. However, the Dusseldorf Higher Regional Court has clarified that not every discussion on resale prices is prohibited. Even the termination of a supply relationship by the supplier due to the retailer's sales prices failing to meet its expectations is permissible. However, suppliers should beware: threatening a retailer with non-supply if they fail to enforce a certain price level is illegal.
In the wake of the COVID-19 pandemic, the franchise model will play an important role in economic recovery, helping individuals to take their first steps into business ownership, presenting opportunities to established operators to grow their portfolios and enabling brand owners to expand and regain or grow their market share. This podcast explores the key legal considerations for any business which is preparing to franchise.
The Federal Cartel Office (FCO) recently published its Annual Report 2019. This article highlights the topics which the FCO covered in its report, including COVID-19, cartel prosecution, merger control, the digital economy, the energy industry, trade, consumer protection and the Competition Register.
The Federal Cartel Office (FCO) is investigating whether Amazon influences pricing on the Amazon marketplace. According to the FCO, it received numerous complaints from merchants regarding Amazon's conduct. The investigation is one of a number of antitrust measures being undertaken in Germany with regard to powerful platforms (eg, Facebook and Booking.com). The German legislature has also become active and included special provisions for powerful platforms in the upcoming antitrust law.
The EU Vertical Block Exemption Regulation will expire on 31 May 2022 and the European Commission is reviewing its effectiveness to determine whether it should lapse, its duration should be prolonged or it requires revision to take account of market developments since 2010 (most notably with regard to online sales and online platforms). This article explores the process so far and examines what this review means for franchising.
The Federal Court of Justice recently decided in interim proceedings that Facebook must implement a Federal Cartel Office order of 15 February 2019 regarding the storage and processing of user data with immediate effect until the decision in the main proceedings. This decision is a milestone with respect to antitrust law limits for data collection through internet platforms for which user data is extremely important.
The IP Enterprise Court recently considered the impact of the EU Trade Secrets Directive on the law of breach of confidence – in particular, in the context of ex-employees who sought to franchise their services. The case confirms the limited impact of the directive on the pre-existing law on breach of confidence. However, it also indicates that the directive can be useful in helping to tease out the distinctions between confidential and non-confidential information.