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This newsletter is a summary of the antitrust developments we think are most interesting to your business.
Charles Pommiès, counsel based in Brussels, is our editor this month (learn more about Charles in our Q&A feature at the end of our newsletter). He has selected:
General
European Commission drives home risks of procedural merger control breaches with fine on Sigma-Aldrich
New Spanish law allows for more effective antitrust enforcement
German court allows lump-sum damages clauses in private follow-on actions
Court confirms long reach of UK merger control jurisdiction
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In a recent judgement, the German Federal Supreme Court indicated that lump sum damages clauses in private follow on damages actions of up 15% are permissible. The decision is a clear example of judicial activism, and plaintiffs will read this as a positive sign.
Background
Over the past few years, the German Federal Supreme Court (
FSC) has clarified several important questions with regard to private antitrust enforcement. The most prominent series of decisions in this regard relates to a price-fixing cartel set up by German rail producers. On 10 February 2021, the FSC issued
On March 25, 2021, The German Federal Supreme Court (
Bundesgerichtshof,
BGH) ruled on appeal that certain transaction surcharges for the use of payment services offered by online payment service providers Sofortüberweisung, part of the Klarna Group, and PayPal do not violate the prohibition on surcharges for SEPA payment transactions.
1
PSD2), which was transposed into German law by Section 270a of the German Civil Code (
Bürgerliches Gesetzbuch,
BGB). The judgment is therefore of interest not only for Germany, but for the entire EU payment services market.
In the appeal case brought before the BGH, the claimant, a consumer protection organization, had originally filed for a cease and desist order against the defendant, a long distance bus operator, for an alleged violation of the ban on surcharges. As a means of payment, customers of the defendant could choose between payment by debit card, credit card, Sofortüberweisung and PayPal. For the latter two, the defendant w