Jens Steger Interviewed on “Case Report Publications by the German Bundeskartellamt – Pillory or Information?” for German In-House Lawyer Magazine

June/July 2014

Jens Steger has been quoted as authority on German and European antitrust law in “Case Report Publications by the German Bundeskartellamt – Pillory or Information?”, which appeared in the German magazine “In-House Lawyer” (unternehmensjurist). The article concerns the Bundeskartellamt’s practice of publishing case reports on its website. Jens was interviewed due to his analysis of such case report publications, which appeared in the prominent German Journal of Competition Law (ZWeR 2013, p. 179-191) in June 2013.

In his analysis, Jens analyzed the admissibility of case report publications related to German merger control law and came to the conclusion that Bundeskartellamt‘s publishing of case reports likely violates German law. For example, case reports published by the Bundeskartellamt in 2012 contained internal data of the merging parties, such as purchase collaborations, distribution collaborations, product-development, new business-models, distribution-systems and other information. In the area of merger control, the authority published 38 case reports in 2009, 28 case reports in 2010, 14 case reports in 2011 and 21 case reports in 2012.

In addition to providing a review of German merger control law, Jens clarified the difference between documents published during the so called “first phase” of a merger control procedure and those during the “second phase” of a merger control procedure. The publication of case reports in the “first phase” of a merger control procedure violates essential rights of the merging companies which are forced to file an application with the Bundeskartellamt. For this reason, more than 30 percent of the published case reports in 2012 were contrary to law. Neither §43 of the German Act against Restraints of Competition (ARC) nor §53 ARC provide a legal provision allowing the Bundeskartellamt to publish “first phase“ documents.

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