MICHAEL A. BERGHOFER, LL.M.

ATTORNEY, COMPETITION LAW EXPERT

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MICHAEL A. BERGHOFER, LL.M.

ATTORNEY, COMPETITION LAW EXPERT

Contact

My services

With more than 15 years of practical experience in all fields of competition and antitrust law, I will competently guide you through all competition-law issues. Trust my advice to avoid sanctions and to proactively use competition and antitrust laws in order to secure your position on the market without undue legal risks.

Your benefit

In close cooperation with you, I develop tailor-made solutions for you and your undertaking to support you in reaching your goals whilst minimizing antitrust and competition law risks. I always keep the big picture in mind and, together with my network of dedicated legal experts in their respective field, provide legal advice in neighbouring fields of law as well, thus being your partner in all questions relating to competition and antitrust law.

My services

With more than 15 years of practical experience in all fields of competition and antitrust law, I will competently guide you through all competition-law issues. Trust my advice to avoid sanctions and to proactively use competition and antitrust laws in order to secure your position on the market without undue legal risks.

Your benefit

In close cooperation with you, I develop tailor-made solutions for you and your undertaking to support you in reaching your goals whilst minimizing antitrust and competition law risks. I always keep the big picture in mind and, together with my network of dedicated legal experts in their respective field, provide legal advice in neighbouring fields of law as well, thus being your partner in all questions relating to competition and antitrust law.

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Attorney /competition law expert

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Attorney /competition law counsel

Antitrust and Competition Law

As can be inferred from the quotes here above, competition and antitrust laws are a special and peculiar field of law many undertakings do not know how to handle – despite the fact that competition and antitrust laws do influence nearly all aspects of any undertaking’s economic actions and competition authorities (and increasingly other market participants) pursue adherence to them ever more rigorously. The extremely wide cartel prohibitions of German (§ 1 GWB) and EU (Article 101(1) TFEU) law prohibit

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“.

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Services

+ CARTELS & CARTEL FINES

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:

  • scrutiny and assessment of the existence of competition law infringements and counselling on appropriate measures for redress and mitigation including leniency applications
  • preparation and advice on the correct behaviour during unannounced inspections by competition authorities (so called “dawn raids”)
  • representation in investigations by competition authorities including unannounced inspections and sector enquiries
  • elaboration of an individual defence strategy as well as conception and execution of tailor-made defence measures
  • representation in contentious court proceedings before the German and EU courts against decisions of competition authorities

+ Merger control

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

  • analysis and advice on how to structure an envisaged transaction in order to avoid notification obligations where possible
  • analysis and advice on risks associated with a transaction from a merger control point of view
  • scrutiny of merger notification obligations in Germany, the EU and worldwide as well as coordination of all required merger control proceedings
  • analysis and advice on how to define and structure a transaction in line with existing notification requirements
  • drafting and filing merger control applications with_the Bundeskartellamt and the European Commission and presentation during said proceedings
  • representation of other undertakings as interested parties in merger proceedings
  • advice of other parties concerned by a merger regarding requests for information and the likely outcome of merger control proceedings

+ COMPETITION COMPLIANCE

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

  • an individual analysis of all competition law related risks pertaining to the specific activity of an undertaking
  • risk based deduction and draft of appropriate processes to address the specific risks identified in the line with the requirements in IDW AsS 980
  • devising and drafting a company specific code of conduct including specialised guidelines for individual groups of employees and specific situations, e.g. during unannounced inspections by competition authorities (“dawn raids”)
  • devising and executing specific trainings of company management, compliance officer, legal department and employees pertaining to the specific competition law risks associated with their duties in the company
  • ongoing advice and support regarding all aspects of day-to-day compliance operations including identification of required amendments and clear and concise answers on specific questions surfacing
  • rendering support with a view to possible infringements of competition law detected internally / in internal audits, devising an appropriate strategy to handle these situations (including, where required, filings with competition authorities and financial regulators) and interaction with the chartered accountant

+ Co-operation

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

  • designing and structuring co-operations for joint purchasing, research and development (R&D), technology transfer and co-operation in the field of distribution including project-related supplier consortia
  • devising, drafting and executing corresponding co-operation agreements, including contract negotiation
  • devising, assessing and amending systems for the exchange of information, e.g. via trade associations or trustees
  • comprehensive advice to all competition law aspects of contact with competitors including recommended behaviour at or in connection with trade association or industry meetings

+ Information exchange

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

  • devising, assessing and amending systems for the exchange of information, e.g. via trade associations or trustees
  • safeguarding the compatibility of an information exchange with applicable competition laws by assessing the information provided by individual participants, the information intended to be relayed to all participants as well as adherence to all criteria for information to be relayed
  • assessment of the competition law compatibility of an information exchange including reconciliation with competition authorities and, if necessary, development of an appropriate defence strategy againt allegations of an infringement

+ Abuse of dominance

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

  • a thorough analysis of whether or not a dominant position may exist
  • advice on how to structure the company behaviour in order to avoid allegations of abusiveness
  • scrutiny and assessment of whether a given behaviour may be considered abusive and consultation on appropriate mitigation matters
  • representation in competition authority investigations including unannounced inspections
  • advising competitors, customers or suppliers of dominant undertakings on how to counter abusive behaviour, including representation in and filing of complaints with the Bundeskartellamt and European Commission

+ Cartel damages

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

  • the consultation of claimants (in particular customers, suppliers and competitors) as well as defendants regarding the chances of success in enforcing or defending against claims for cartel damages
  • preparation of cartel damage litigation including access to the respective competition authorities’ file and gathering and preparation of evidence
  • non-contentious enforcement including negotiating, drafting and concluding settlements
  • contentious enforcement / defence against cartel damage claims in front of the courts of competent jurisdiction

+ Distribution systems

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

  • assessing, designing, setting up and executing supply and distribution agreements
  • designing, structuring, drafting and executing special distribution relationships like selective distribution systems, agency agreements or franchise agreements
  • assessing, designing and setting up systems for online distribution
  • support in negotiating corresponding contracts and in implementing and communicating amendments to business partners and relevant stakeholders
  • representation in contentious or non-contentious complaint proceedings as well as in investigations by competition authorities

+ DRAFTING OF CONTRACTS

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

  • assessment, (re-)design and execution of agreements and contractual provisions, in particular covenants not to compete, exclusivity clauses, stipulations on contract territories, customers and customer groups as well as other competitive activities in order to establish a legally secure and fully enforceable agreement
  • assessment of contract provisions potentially infringing competition laws
  • negotiation of agreements and contract clauses
  • representation in non-contentious negotiations on amendments of or dissolution from agreements and contracts raising competition law concerns
  • where necessary, representation in contentious proceedings in front of competition authorities and courts

+ Adjacent fields of law

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

  • procurement law
  • subsidy law and EU state aid law
  • trade and company law
  • law against unfair competition
  • intellectual property law
  • copyright, patents and trademark law
  • law of contracts
  • distribution law

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

Blog & News

News

Almost exactly one year after the 9th Amendment to the German Competition Act (GWB) came into force on 9 June 2017, the German Federal Cartel......

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News

In its ruling of December 6, 2017, the European Court of Justice (ECJ) provided important clarifications regarding the assessment of third-party platform bans in internet......

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News

Das Thema Marktkonzentration und gemeinsame Eigentumsstrukturen bezeichnete Vestager als gegenwärtig besonders wichtig: Konsumenten sähen sich infolge fortschreitender Marktkonzentration heute oft großen Unternehmen gegenüber, denen gegenüber......

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News

Today, the Bundeskartellamt has fined toy producer LEGO for enforcing vertical resale price maintenance in the sale of several so-called “highlight articles”.  The comparatively low fine largely results......

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Blog & News

Contact

M. +49 173 1974 922

E. mb@berghofer-legal.de

Law practice in Starnberg
Josef-Jägerhuber-Straße 10
82319 Starnberg
T. +49 8151 55 66 547
F. +49 8151 55 67 664

Office in München
Maximilianstraße 2
80539 München
T. +49 89 20 500 85644
F. +49 89 20 500 8150

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