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(In)admissibility of case report publications by the German Bundeskartellamt within the scop…

June 2013

(In)admissibility of case report publications by the German Bundeskartellamt within the scope of German merger control law? (ZWeR 2013)

Dr. Jens Steger, an antitrust lawyer in our Frankfurt office, authors “(In)admissibility of case report publications by the German Bundeskartellamt within the scope of German merger control law?” which appears in the German Journal of Competition Law (ZWeR 2013, p. 179-191)

Since 2009 the German Bundeskartellamt (Federal Cartel Office) has been publishing case reports (so called “Fallberichte”) on its website regarding certain proceedings.  Steger  analyzes the admissibility of these case report publications related to German merger control law and comes to the conclusion that Bundeskartellamt‘s publishing of case reports likely violates German law.  Case reports published by the Bundeskartellamt in 2012 contained―for example―internal data of the merging parties, such as purchase collaborations, distribution collaborations, product-development, new business-models, distribution-systems, etc. 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 a review of German merger control law, Steger clarifies 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.

Steger further draws the parallel to the publication of merger control notifications on the website of the German Bundeskartellamt which is also contrary to law. Finally he discusses the problem of protecting business-secrets within the scope of German merger control law. To date, no court has clarified whether the Bundeskartellamt has the right to publish an entity’s internal documents, or merger control notifications, publicly as part of merger control.

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