Annual workshop of the Studienvereinigung Kartellrecht

The annual workshop of the Studienvereinigung Kartellrecht is a long-standing tradition, bringing together German-speaking antitrust practitioners in Bonn every December. This event not only provides an excellent opportunity to reconnect with colleagues and friends but, more importantly, serves as a platform to reflect on the year’s developments and discuss emerging trends in antitrust law. While I will not delve into a comprehensive summary of the entire event, this post highlights some particularly noteworthy points focusing on the speech of the president of the German FCO.

A room full of competitors?

I conducted an antirust training for a client earlier this week. When I told him that I was going to meet many of the German (Austrian and Swiss) competition bar, the client indicated that I had told a few minutes ago that meetings amongst competitors bear a certain risk of collusion and should ideally be avoided (at least if not absolutely required for a legitimate reason). Thus, the Studienvereinigung meeting would not really fit with what I said earlier. When I replied that we are only discussing topics not relevant to our competitive relationship, he said that this was something he had heard from the business before, which was a fair point to be made…

Recalling this conversation while on my way to the meeting, I was therefore glad that not only Prof. Dr. Wolfgang Kirchhoff, the presiding judge at the Cartel Senate of the German Supreme Court, attended, but also around thirty participants of the German Federal Cartel Office (FCO), making the Studienvereinigung probably the best-monitored meeting among competitors in Germany.

The FCO speech

Traditionally, Andreas Mundt, the president of the FCO, sets the tone for the day with his “Jahresbilanzpressekonferenz” (not translatable into English, but something along the lines of “year-end conclusion press conference”), offering a comprehensive review of the past year and an outlook for the upcoming one. Key takeaways from his speech (of which the initial draft was 74 pages long) include:

• The number of leniency applications remains low, with the FCO having received only 14 applications in 2023 so far. Consequently, the percentage of cartel proceedings initiated based on leniency applications fell below 50% for the first time. In the meantime, cartel proceedings were predominantly instigated by insider information provided by whistleblowers. The FCO is also actively exploring novel methods for cartel detection, such as screening markets through the evaluation of publicly available data. While the president did not disclose the specifics of this approach, he noted that the results were promising and could serve as sufficient grounds to initiate a dawn raid ex officio.
• Turning to the recent amendment to German antitrust law, Mundt said that the FCO had not asked for its new powers granted by the law. As a reminder, the FCO now has the competence  to impose behavioral or structural remedies on companies (up to breaking up companies) following a sector inquiry, even absent any infringement of the law. The president indicated that, given the two-stage application of this new tool, future proceedings would likely be protracted, lasting up to three years, with potential court proceedings following.
• When Mundt mentioned that there were around 800 merger control filings in 2023 compared to 2200 fifteen years ago, one could see that the lawyers in the room wished back good old times he opposed an additional increase of the turnover threshold in Germany, asserting that the increase three years ago was sufficient. He pointed out that the European Commission had not adjusted its merger thresholds since 1998, and any further increase would result in reduced merger scrutiny and more sectoral investigations.
• Mundt emphasized that he saw no need for significant changes in the upcoming revision of the EU’s Regulation 1/2003. Cooperation between national competition authorities and the European Commission had been successful, as demonstrated by the excellent collaboration between the FCO and the European Commission in the cases under Sec. 19a of the German antitrust act. In these cases, according to Mr Mundt, the FCO informs the European Commission of its intent to initiate a new proceeding and closely cooperates throughout.
• The FCO issued substantial guidance regarding cooperations last year, and Mundt extended an invitation to everyone to approach the FCO if parties sought guidance, particularly in the context of sustainability initiatives.

When many clever people meet, time is of essence

It is somewhat of a tradition at the Studienvereinigung that „questions“ from the audience in fact turn into speeches, with a question (maybe?) hidden somewhere in between. This can sometimes lead to slots overrunning significantly. If one takes the start of lunch as an indicator for how much there was to discuss, there were indeed a lot of controversial topics – for many, lunch only started at 2.15.  

Apart from the fact that the railroads in Germany are on strike again, which made the journey home somewhat difficult for many participants, it can definitely be said that the event remains one of the highlights in the year of German-speaking antitrust practitioners. Its growing popularity among younger lawyers is evident, supported by welcoming initiatives such as drinks for new members and an evening gathering for young lawyers on the eve of the event.

Photo by Edwin Andrade on Unsplash