Luther Competition Law Forecast 2022 – Topics that will be important under antitrust law in 2022

The Federal Cartel Office announced at the end of last year, in its review of 2021, that it would adopt a tougher approach to investigations. It stated, for example, that it was planning on carrying out more unannounced searches (so-called “dawn raids”) in 2022 (see here). The starting point for its new efforts in 2022 were the dawn raids on cable manufacturers carried out on 18 January. The Federal Cartel Office’s plans are thus in line with those of the European Commission, whose Commissioner for Competition, Margrethe Vestager, announced a series of dawn raids for the months to come as early as October of last year. There are plans to make leniency programmes, under which administrative fines (and only those) can be avoided by disclosing antitrust infringements to competition authorities, more attractive again private follow-on claims for damages. In practice, leniency applications have to some extent become unpopular because of the risk of private damage claims. The guidelines on the Federal Cartel Office’s leniency programme, which were updated last year, are intended to help achieve this aim. The Federal Cartel Office is even reflecting on whether to fully indemnify key witnesses against claims for damages asserted by parties that have suffered damage due to the cartel; this discussion will certainly be continued in 2022.

We can also expect the Federal Cartel Office to take further measures under consumer protection law, even if its powers continue to be limited (see here). In this context, further sector inquiries can be expected, a central aspect of which might be the possibilities for consumers to switch between different services and the interoperability of services required for this purpose (see here).

The new Regulation 330/2010 (“Vertical Block Exemption Regulation”) for distribution agreements is eagerly awaited this year. The current Regulation will expire at the end of May 2022. Therefore, in July 2021, the European Commission presented for public consultation the draft of the new Regulation along with guidelines.

The structure of the current Block Exemption Regulation with market share thresholds, hardcore restrictions (Article 4) and what is generally referred to as “grey clauses” (Article 5) will not change. The changes in the wording of the Regulation concern, in particular, the following areas:

• dual distribution – personal scope of the exemption extended to include importers;
• dual distribution – additional 10% market share threshold at retail level;
• no application of the Vertical Block Exemption Regulation to hybrid online platforms;
• platforms – classification of best-price clauses of online platforms as “grey clauses” and definition of platforms as “suppliers”; and
• restriction of customers and territory – newly structured provision and improved protection of distribution systems.

The associated guidelines have been comprehensively restructured and supplemented with further notes on interpretation. There are likely to be changes in practice regarding, for example, the assessment of:

• restrictions on online distribution – a certain facilitation in relation to dual pricing, the requirement of equivalence and the classification of online restrictions (platform bans, among other things);
• prohibition of price fixing – the Commission is considering in this respect to no longer regard minimum advertised price policies and fulfilment contracts as a violation of the prohibition of price fixing.

One can find an overview with illustrative diagrams in the slides on the reform of the Vertical Block Exemption Regulation that were presented at a workshop organised by Studienvereinigung Kartellrecht on 10 December 2021. The significance of these changes for companies has already been discussed in a blog contribution published in the Luther Newsroom, where we have also dared a look into our crystal ball (here).

With the introduction of the Competition Register last year, the Federal Cartel Office has created a digital database that allows above all the over 30,000 contracting authorities in Germany to obtain information about breaches of competition law and other economic offences by bidders before awarding a contract and to exclude offenders from the contract awarding process. For companies, things will get serious from June 2022, which is when inquiries with the Competition Register become mandatory before the award of contracts worth EUR 30,000 or more. This is why companies that committed breaches in the past will be using the coming year to engage in “self-purification” in particular by implementing compliance measures in order to be deleted early from the Competition Register.

Even though the European Whistleblower Directive has not yet been implemented in Germany (the deadline for transposition into national law was actually mid-December), companies would be well-advised to think already now about setting up internal whistleblowing systems.

From the European Commission’s perspective, the year 2022 will be characterised by an ambitious agenda of transformation towards a stronger Europe: the European Commission wants the European Union to become greener, more digital, fairer and generally more resilient. To this end, it has presented a work programme for 2022. The European Commission uses a variety of methods to pursue its strategies. It relies, for example, on public and private investments to finance the implementation of the green transformation process. Public funds are to help double the financing available for biodiversity. In addition, “green bonds” are to pave the way towards sustainable finance. Externally, the plan is for the European Union is to develop into a leading global power. The European Commission’s policy (in particular in connection with the Green Deal) will have various consequences for economic actors. In practice, this means that companies will be required to implement the obligations and options for action arising from possible European initiatives in compliance with antitrust law. This will be of particular relevance in the area of sustainability.

Joint initiatives by competitors to promote sustainability, climate protection and environmental standards must be compatible with the prohibition to restrict competition. Some antitrust authorities are, for example, already in the process of defining general guidelines that could help companies carry out the required self-assessment, or of examining whether the prohibition to restrict competition should be applied less strictly to such sustainability initiatives. By contrast, the German Federal Cartel Office has so far relied on a case-by-case assessment carried out on the basis of the existing legal framework (“sustainability through functioning competition”), but expressly offers to provide informal assistance. In view of the increase in joint sustainability initiatives (not only in Germany), more decisions or at least press releases on the assessment of such initiatives are likely to become known in 2022 (for information on recent decisions of the German Federal Cartel Office, see here).

On 25 November 2021, the European Commission adopted a revised Communication on State aid rules for Important Projects of Common European Interest (“IPCEIs”) (C(2021) 8481 final, “IPCEI Communication”). Since the first IPCEI Communication was introduced in 2014, approval has been given for three IPCEIs on microelectronics and battery cells, in which numerous German companies are involved. Further IPCEIs on hydrogen, microelectronics/semiconductors and a European cloud are under development. Potential IPCEIs on space technologies, health and climate-friendly aviation fuels are currently being discussed. Under the IPCEIs already launched, the partners involved have received several billion euros in State aid from the Member States involved.

On 21 December 2021, the European Commission approved the new Guidelines on State aid for climate, environmental protection and energy (briefly, “Climate, Energy and Environmental Aid Guidelines” or “CEEAG”). These Guidelines define the conditions under which State aid granted by Member States in the areas of climate, environmental protection and energy can be considered compatible with the internal market. The new CEEAG contain numerous changes compared to the current Guidelines. These changes are part of the comprehensive transformation of industry towards climate neutrality that is being pursued with the European Green Deal. In addition, a clear change in procedural terms exists inasmuch as the CEEAG contain in several aspects more favourable terms for State aid granted based on a competitive bidding process.