Jungermann, Steger Speak at
International Antitrust Seminar

Frankfurt-based Antitrust partner Dr. Sebastian Jungermann and associate Dr. Jens Steger presented three international antitrust topics at a seminar on transnational antitrust law at the Law Center of the University of Freiburg in Germany. The opportunity to present at the two-day seminar, attended by law students, in-house counsel and other antitrust practitioners, came through a direct invitation from Prof. Dr. Riesenkampff of Albert-Ludwigs-University Freiburg and Prof. Laurence T. Sorkin of Fordham University in New York. The three presentations were:

• “How to Obtain and Use US Discovery in EU/German Private Antitrust Actions”
  In this session, Jungermann discussed Section 1782(a) of Title 28 of the USC (Section 1782), an old but very powerful tool available to European antitrust litigants seeking discovery in the US for use in foreign private antitrust litigation. Section 1782 allows private antitrust (and other) litigants in foreign proceedings to take advantage of the comparatively liberal approach to US discovery under certain circumstances. Such US discovery may include the production of documents, ESI (electronic discovery) and other tangible evidence, as well as sworn deposition testimony of witnesses. Jungermann noted, however, that the ability to conduct such discovery is not automatic—a US district court must grant permission to conduct Section 1782 discovery.

“Cartel Liability for Non-Market Participants”

• In this session, Steger discussed the EU Court of Justice’s first-ever ruling on the so-called “facilitation” of cartels—such as the organization of a cartel by a consultancy firm. The landmark ruling came on October 22, 2015, when the Court (C-194/14 P) confirmed an earlier General Court judgment from February 2014 (and thereby a Commission decision of 2009) to hold AC Treuhand liable under EU antitrust rules for facilitating cartels. The ruling is important for two reasons. First, the Court confirmed that the service agreement between AC Treuhand and suppliers of heat stabilizers constituted an illegal agreement under EU competition rules. Agreements that distort competition in the EU are caught by Art. 101 TFEU, irrespective of whether the parties operate in the same market. Moreover, the Court held that the effectiveness of Art. 101 TFEU, which prohibits anticompetitive business practices, would be endangered if facilitators, such as AC Treuhand, could escape liability.

•  Cartel Sanctions Including Risks of Extradition: Criminal Antitrust Enforcement in the US and EU”
  In this survey session, Jungermann reviews the considerable long-running debate over criminalizing antitrust enforcement. Europe has over the last decade seen a cycle of both decriminalization and criminalization of its competition enforcement laws. Germany criminalized bid-rigging in 1998. The Netherlands, France, Austria and Luxembourg have all replaced a system of a criminal enforcement with a system of administrative fines, while the UK and Ireland have introduced criminal penalties. The United States introduced the Sherman Act in 1890 and has, ever since, considered cartel activity to be harmful. In 2014, the Antitrust Division of the DOJ charged 44 executives and 18 companies with price-fixing, bid-rigging and fraud offenses. Twenty-one individuals were ultimately sentenced to serve time in jail, with an average prison sentence of 25 months. In April 2014, the Antitrust Division of the DOJ announced that it successfully secured the extradition of an Italian national from Germany for his alleged role in a marine hose bid-rigging conspiracy—its first-ever extradition of a foreign national based solely on antitrust charges. Three weeks later, the DOJ announced that the defendant pleaded guilty and was sentenced to two years in prison.