We advise all types and sizes of German and international companies in matters involving German and European antitrust and competition law.
Our legal advice covers all areas of antitrust, from merger control and bans on restrictive practices to the competitive conduct of companies with strong or dominant positions in the market and includes competition proceedings as well as the asserting and defending against claims asserted under civil law. Ongoing advisory support regarding compliance with regulations set by competition law and the employee training are additional aspects of our services.
We advise our clients on antitrust issues in connection with the acquisition and sale of companies, whether in the acquisition of shares, assets or the establishment of a joint venture.
This includes the examination of contracts in the course of the due diligence process and, as the case may be, anti-competitive practices of the target.
A key aspect is the negotiation of antitrust regulatory issues in the relevant contracts (Share Purchase Agreement, Asset Purchase Agreement, Cooperation Agreement, etc.).
Additionally, we advise on the assessment of potential filing requirements worldwide respectively make required notifications. We conduct merger filings other than with the German Federal Cartel Office and the EU Commission in cooperation with our worldwide network of partner law firms.
Finally, the exchange or disclosure of information is a key aspect throughout the entire process in case the parties to the transaction are (potential) competitors. In such case, the implementation of a clean team may be required.
We advise our clients on any merger projects before the European Commission.
This includes the assessment of a potential merger filing requirement, possible informal consultations with the EU Commission and, if requirement is confirmed, the notification of the merger before the European Commission.
Furthermore, the advice includes the filing and implementation of appeals against decisions of the European Commission.
We advise our clients on all aspects of German merger control law before the German Federal Cartel Office.
This includes the assessment of a potential merger filing requirement, possible informal consultations with the German Federal Cartel Office and all aspects of merger filing proceedings.
Furthermore, the advice includes the filing and implementation of appeals against decisions of the German Federal Cartel Office.
Besides merger control with reference to Germany and the EU, multi-jurisdictional projects can be relevant and trigger a merger control filing requirement with other national competition authorities worldwide. Such depends on the specific proposed transaction structure, the affected market activities and the relevant parties to the transaction on a case-by-case basis, as well as in particular on the various merger control thresholds of the respectively relevant jurisdictions. We advise our clients on all multi-jurisdictional merger projects, assess potential merger control filing requirements, and make such filings in close cooperation with our partner law firms in other jurisdictions.
Cooperations between competitors are regularly challenging under antitrust law, as competition authorities and courts tend to assume adverse competitive consequences or even objectives in such cases.
We advise our clients on cooperations with (potential) competitors and, in particular, point out limits and possibilities, including by means of a Block Exemption Regulation or an individual exemption.
One of the main focus points within our legal practice is the guidance and advice to our clients on distribution and supply matters, in particular on issues such as exclusivity, territory allocation and other agreements in authorized dealer, commercial agent or other distribution and supply contracts. This includes the assessment of exemption possibilities under Block Exemption Regulations by the EU Commission, in particular the one for Vertical Agreements revised and updated in 2022 (Commission Regulation (EU) 2022/720 of 10 May 2022).
We advise our clients on all aspects of license agreements and the usually accompanying challenges at the interface of antitrust law and intellectual property law. This includes the drafting of the contractual agreement as well as its enforcement.
A license agreement is a contract in which the owner of an intellectual property right grants a third party the rights to use the intellectually protected product. This contract determines in what way and to what extent a product may be commercially exploited. Such agreements can have significant influence on the market structure and are therefore subject to antitrust law compliance (inter alia in context of the Block Exemption Regulation for Vertical Agreements).
The protection of confidential information by means of a non-disclosure agreement is standard procedure in any industry.
We advise and support our clients in all aspects of such agreements. In particular, we help drafting such agreements in case that competitors want to protect their competitively sensitive information, intellectual property and know how. In such cases the limits set by antitrust law must be observed as competitors may not subject themselves or each other to restrictions in excess of what any other competitor is free to do.
Whether in the context of an acquisition, a joint venture, an industry association, or on other occasions, the exchange and disclosure of information among competitors is an essential element of antitrust compliance and an issue of increasing concern to competition authorities.
We advise and support our clients in all aspects of such exchange or disclosure. This includes the advice and guidance on information exchange in compliance with antitrust law as well as drafting of guidelines, NDAs and the legal review of such.
A whole range of antitrust issues arises in connection with joint ventures, including, in particular:
Merger Control: Under German merger control law, the thresholds are comparatively low. There is no requirement for joint control, nor does the joint venture have to be fully functional. Rather, a joint venture already exists if at least two companies acquire an interest of 25% or more in another company, either simultaneously or successively. In addition, German merger control law requires a notification if a party acquires “significant competitive influence”.
Non-compete agreements: What rules of conduct are permissible for the Joint Venture and for its majority and minority shareholders? We advise you, which measure are permissible in order to safeguard your interests.
Double control: Under German law, the prohibition of anti-competitive agreements and concerted practices applies in addition to merger control. However, the relevant requirements are not already examined by the German Federal Cartel Office as part of the merger control clearance. The parties must therefore ensure themselves that the cooperation within the framework of or via the joint venture does not violate the cartel prohibition. In certain groups of cases, according to the German Federal Cartel Office and German case law, a violation is even presumed.
Exchange of information: The exchange of competitively sensitive information can be of particular concern under antitrust law. Competent authorities have significant concerns about joint ventures, especially in context of competing joint venture partners. In such cases, the market activities of the joint venture must be thought through in the context of the competitive relationship between the parent companies and the corresponding (possible) flow of information between the three parties in terms of antitrust law, including on the basis of information rights of the shareholders.
Withdrawal of a shareholder: If a shareholder leaves, it must be examined whether the takeover of his shares by remaining or new shareholders is subject to merger control. In the German Federal Cartel Office’s view, a transaction subject to notification may already exist if only the number of co-controlling shareholders is reduced. It may also be relevant if certain shareholding thresholds are exceeded.
We advise our clients on all these issues in order to create a robust legal framework for their business.
In cartel damage claims, we advise and support our clients both out of court and in all instances before the German and European courts. Our focus is on the defense of alleged cartelists, both on the merits and in terms of amount.
Already at an early stage, the GvW antitrust team involves our litigation specialists as the procedural course can or must possibly already be set during out-of-court negotiations.
At the same time, the defense includes legal as well as competitive economic analysis and argumentation so that we cooperate closely with competition economics specialists. If necessary, we assist in the preparation of expert opinions on competition economics or otherwise develop appropriate lines of arguments.
In the area of compliance, we advise and support our clients in particular in the introduction of compliance systems.
This includes the identification of relevant issues, the review of contracts and conduct, as well as the development and implementation of such a system. It is particularly important to introduce the relevant departments and employees to the system and its use. To implement the requirements of the system, we therefore train the relevant departments and employees and provide appropriate online-tools.
We also train employees and departments on antitrust issues, e.g. sales, independently of an overarching compliance system.
A transaction must not be (to some extent even partially) closed before it is cleared by the competent antitrust authorities. Otherwise, there is a risk of severe fines and even dissolution of the already implemented transaction.
We show you which preparatory measures are permitted before closing and provide you with guidelines for your management and staff.
The German Federal Cartel Office and the European Commission can, in particular, impose severe fines in the event of cartel violations.
We train your management and staff for the event of a Dawn Raid.
Further, we represent our clients in investigation and fining proceedings, starting with Dawn Raids or other investigative measures, through administrative proceedings, to the courts to challenge the measures taken and decisions adopted by the competition authorities.
German and European law provide for the possibility of avoiding a fine or at least reducing such a fine by means of a voluntary disclosure, so called leniency application.
We advise our clients on the decision on such an application, preparation of the same and its submission to the competent authority.
Contractual non-competition and non-solicitation clauses are relevant in various constellations such as transactions, cooperations between competitors and vertical business relationships. While these are mostly of material importance to the overall business relationship between the parties, they are subject to narrow limits under antitrust law and require closer examination against the background of the specific individual case. In particular, violations of antitrust law can lead to nullity of the respective or even the entire agreement, and administrative fines. We advise and support our clients both in the legal review and the in drafting of such clauses.
