Competition Outlook 2021 / Content Review: Key Trends in 2020 ...................................................................................... 4 Covid-19 pandemic ................................................................................................... 5 Renaissance of State aid law in times of pandemic ...................................................................... 6 The failing firm defence in light of the Covid-19 crisis .................................................................. 8 Impact of the Covid-19 pandemic on German competition law ................................................. 10 Cartel damages in Germany .................................................................................... 11 The Federal Court of Justice puts claims back on track .............................................................. 12 Merger control in the EU ........................................................................................ 15 Fewer merger bans by the European Commission? ................................................................... 16 News on the calculation of turnover for joint ventures in EU merger control ........................... 18 Fine proceedings .................................................................................................... 21 Germany’s Federal Court of Justice rules on “beer cartel” ......................................................... 22 Digital topics in 2020 .............................................................................................. 24 European Commission sector inquiry on the Internet of Things ................................................ 25 Sector inquiry into smart TVs: Consumer protection as a competition parameter? .................. 27 Germany’s Federal Cartel Office investigates falsified user ratings on online platforms: operators should be held more accountable .............................................................................. 29 Outlook: What to expect in 2021 ............................................................................ 31 Brexit ..................................................................................................................... 32 Brexit: The transition period is ending – what do you need to know? ....................................... 33 10th amendment to the German Act against Restraints of Competition (GWB): ...... 35 Antitrust law and digitalisation ............................................................................... 35 Merger control ............................................................................................................................ 36 Modernising control of abusive practices ................................................................................... 38 Extended investigation powers of the Federal Cartel Office ...................................................... 40 Procedures for imposing administrative fines proceedings ........................................................ 42 Revision of EU (competition) law ............................................................................ 44 Review of the Vertical Block Exemption Regulation – next phase has started ........................... 45 2 New EU legal framework for the digital economy ...................................................................... 47 White paper of the European Commission on foreign subsidies in the single market............... 49 The era of the Foreign Investment Screening Regulation begins ............................................... 51 Competition law and sustainability ......................................................................... 53 Is a “new ecological approach” on the way in EU competition law? .......................................... 54 Reform of EU State aid law in light of the Green New Deal........................................................ 56 Cartel damages in Germany .................................................................................... 58 Damage assessment and expert opinions ................................................................................... 59 Digital topics in 2021 .............................................................................................. 61 The importance of data and the antitrust cases against Facebook ............................................ 62 Narrow ‘best price’ clause under review by Federal Court of Justice......................................... 64 Brandgating: Amazon again in the Federal Cartel Office’s focus ................................................ 66 Competition law becoming more important for Standard Essential Patents ............................. 67 Google/Fitbit – Digital mergers and merger control ................................................................... 69 Google Android reloaded? – Legal action by the DOJ ................................................................. 71 3 / Review: Key Trends in 2020 4 / Covid-19 pandemic 5 / Renaissance of State aid law in times of pandemic Following the beginning of the pandemic and especially after the shutdown measures tak- ing effect in Germany and many other EU Member States, governments have been adopting extensive emergency programmes to support the companies concerned. Most emergency programmes have to be qualified as State aid since they grant advantages for certain under- takings or sectors through state resources. They therefore require prior review and approval by the European Commission. The European Commission reacted promptly and issued a legal framework addressing the compatibility of such programmes and measures with EU State aid standards. For example, as early as 19 March 2020, following consultations with the Member States, the “Temporary Framework” was adopted for State aid measures which was later expanded four times. Only shortly afterwards, the European Commission approved the first national programmes, includ- ing those of Germany and France. The Member States rarely have any leeway to introduce na- tional programmes deviating from the Temporary Framework, so the conditions referred to there usually also apply to companies in practice. The Temporary Framework, in principle, will continue to apply until the end of June 2021. According to the requirements of the Temporary Framework, the following aid can be approved for companies that were not already in financial difficulty on 31 December 2019: Direct grants, repayable advances and tax advantages of up to EUR 1m to address urgent need for liquidity; public guarantees on bank loans taken out by companies; subsidised interest rates for loans; recapitalisation and subordinated debt; aid for microenterprises and start-ups; incentives for the participation of private investors in recapitalisation measures; State aid for Covid-19 relevant research and development, the production of medicinal products, medical devices, protective equipment, etc. and investment aid for testing and upscaling infrastructures; aid for uncovered fixed costs of up to EUR 3m; deferrals of tax and/or social security contributions; wage subsidies; short-term export credit insurance for marketable risks. For Germany, roughly 15 programmes have been approved, including the Economic Stabi- lisation Fund, the KfW Special Programme 2020, guarantee schemes, interim aid, Coronavirus emergency aid and, most recently, the November aid for businesses affected by the govern- ment ordered closure as part of the “wave-breaker” shutdown in November. 6 In addition to the Temporary Framework, the European Commission has also approved individual State aid granted to companies (such as Condor) and State aid programmes for cer- tain industries on other legal bases. Since the issuance of the Temporary Framework, more than 300 decisions have been de- livered to approve State aid notified by Member States. What is interesting in this context is the imbalance which is viewed sceptically by politicians in Brussels: More than 50% of the State aid approved by the European Commission concerns Germany; followed with a consid- erable gap by Italy, France (approximately 15% each) and Spain (approximately 5%). Irrespec- tive of this, the European Commission has shown that the State aid rules can be applied quick- ly and as required by the specific situation to tackle the economic difficulties previously unheard of in this form. For further questions please contact: Dr Jens Peter Schmidt Sarah Blazek, E.MA Partner Associated Partner T +32 2 2745570 T +49 89 28628513 [email protected] [email protected] 7 / The failing firm defence in light of the Covid-19 crisis Germany, like many other countries, is experiencing the second major wave of the Covid-19 pandemic in the winter months of 2020/21. It is a well-known fact that this pandem- ic, in addition to the serious health effects, has also brought considerable economic problems. A large number of insolvencies can be expected, especially after the suspension of the obliga- tion to file for insolvency ends (see here – German only). A possible way out of or around in- solvency may be a takeover or an investment by another company. But, if this company is al- ready active in the same markets as the distressed company and the takeover results in high market shares, such a rescue threatens to fail due to obstacles under merger control law. However, if the merging companies succeed in demonstrating that the weakening of competi- tion in the markets concerned would also occur without the