MICHAEL A. BERGHOFER, LL.M.

The imposition of cartel fines up to an amount of ten percent (10%) of a company’s global yearly group turnover for a single infringement is the most potent instrument German and European competition authorities dispose of, save for criminal sanctions (which are, however, more relevant abroad). With my longstanding experience as a lawyer defending undertakings and company directors alike in cartel proceedings and against cartel fines (in front of the German Bundeskartellamt, and the European Commission’s Directorate-General for Competition as well as the German and EU courts), I provide the following services:

External growth of undertakings – in particular by acquisition of shares or assets of another undertaking, consolidation of companies, joint ventures, corporate mergers or tie-ups, but also by certain kinds of co-operation or leases – will have to be notified to and approved by competition authorities (often in various jurisdictions) prior to closing if certain turnover thresholds are exceeded. In order to avoid the severe consequences non-compliance with mandatory merger notification obligations entails (in particular fines and divestiture) and to allow a swift, legally secure and efficient closing of proposed company transactions, my services – in which I include specialised partner attorneys abroad where needed – comprise

Competition law compliance aims at minimising competition law infringements and at the same time safeguarding the company’s management and executives from personal liability: by appropriate rules and processes, due delegation and appropriate controls can be demonstrated should an infringement occur. Moreover, competition law compliance programs can serve to reduce the amount of competition law fines. Based on my long-standing experience in designing, amending and scrutinising competition law compliance management systems (CMS) – including certification under the IDW AsS 980 Principles for Proper Performance of Reasonable Assurance Engagements Relating to Compliance Management Systems during my tenure at a Big4 accounting firm – my services include

Co-operation with other undertakings, including with (potential) competitors, can lead to substantial economic benefits, e.g. economies of scale from joint purchasing, reduced cost from co-operation in the field of research and development or the use of proprietary technology by a multitude of undertakings. Often, co-operation is to the benefit of consumers and not detrimental to competition. However, in most cases co-operation does entail coordination of market behaviour by the participants, which always leads to competition law risks. When it comes to co-operation, there are plenty of legal possibilities, provided the co-operation is structured from the beginning in compliance with competition law requirements. My services comprise

Due to vast and far-reaching developments in jurisprudence and competition authority output, information exchange between undertakings is facing ever more rigid boundaries; lately, information exchanges have often been explicitly sanctioned with cartel fines. Like in the field of co-operations, there are still many legal possibilities to exchange information, provided the competition law restrictions are adhered to from the very beginning and changes and alterations in the competition law assessment of information exchange are duly reflected by amendments of any existing exchange. My services include

Undertakings with a dominant position on the relevant market are subject to particularly strict behavioural obligations under applicable competition laws, a dominant position being (rebuttably) presumed once market shares exceed 40% (Germany) or 50% (EU) respectively; German competition law entails similar provisions for undertakings with market power significantly below the dominance level. When it comes to alleged abuses of dominance, my services include

When I started practising competition law, cartel damage proceedings were extremely difficult to win and therefore nearly unknown in Germany and the EU. In recent years, court rulings as well as amendments of applicable laws did significantly facilitate contentious cartel damage claims that today there hardly are cartel fines that are not followed by private cartel damage claims and litigation. Damages suffered through cartel behaviour, refusal to supply or abuse of a dominant position can quickly reach an amount exceeding even cartel fines: damages bear interest from the time of the competition law infringement and all participants in an infringement are jointly and severally liable for the total amount of damages any third party incurred. With a view to cartel damages, my services include

Distributing products is the core business activity for the majority of undertakings, whether they are producers or retailers. Antitrust and competition laws contain important requirements for distribution and supply relationships, non-compliance with which poses a significant economic risk as it can result in cartel fines and, in particular, make the entire agreement null and void. Competition law requirements concern agreements and concerted practices regarding all market-related activity, in particular regarding price, price components and rebates, territories and customers, but equally advertising and online distribution. As, therefore, a design of distribution and supply relationships in full compliance with competition law requirements as well as the defence against any undue claims infringing competition and antitrust law is of the essence to ensure legal certainty in distribution and supply relations, my services comprise

Contracts and agreements are shaping the relationship between economic actors; they are omnipresent in economic life and of vital importance for the economic success of every single undertaking: therefore, contracts and agreements must be favourable content wise, but in particular legally certain and enforceable in a court of law in case of a dispute. Competition law prohibits “all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition” (§ 1 GWB, Art. 101(1) TFEU). Whether conducted orally or in writing, legally binding or mere gentleman’s agreement: if a contract or agreement infringes this extremely wide statutory prohibition, it is null and void, cannot legally be enforced and may be sanctioned by cartel fines. My services include

Competition and antitrust law is both, a highly complex and specialised legal area and at the same time an interdisciplinary matter. Competition law problems surface in a multitude of economic situations, which often are predominantly governed by other fields of law like contract, distribution, trade and company law or the law of intellectual property. In fields of law adjacent to competition and antitrust law, in particular in

I equally have long-standing practical experience and am happy to advise and represent you. Should highly special knowledge be required, I co-operate with specialised law firms excelling in their respective fields