Recent Developments in German Competition Law

Since our last Advisory on the subject in July 2011, there have been again major developments in German competition law. At the legislative level, the German Federal Ministry of Economics and Technology has presented a draft bill for a major revision of the German Act against Restraints of Competition (ARC), which is intended to align the German competition regime even closer to the EU rules. Furthermore, in a landmark decision, the Federal Court of Justice clarified key aspects of the legal framework for private cartel enforcement in Germany by recognizing the standing of indirect purchasers and the admissibility of the passing-on defense. In addition, the Federal Court of Justice also confirmed the strict limits of successor liability in cartel cases under German law, which are in stark contrast to the approach at the EU level. Finally, the German Federal Cartel Office (FCO) has continued with its aggressive prosecution of cartels, adopting a significant number of fining decisions against companies and individuals.