Monthly Dose of Germany

Exchange of Information between Competitors

Draft of new Horizontal Guidelines/Vertical-BER 2022

The exchange of information between market participants plays an important role, especially with regard to digitalization. However, the exchange of competitively sensitive information is critical from an antitrust point of view, as it can impair the secret competition necessary for a functioning market, with the consequence that there is a violation of the ban on cartels in Section 1 GWB and Article 101 (1) TFEU.

This article takes a closer look at the exchange of information, taking into account the draft of the new Horizontal Guidelines as well as the Vertical Block Exemption Regulation 2022 and the associated Vertical Guidelines 2022.

The challenge of mass litigation and its successful defense

Efficiency, Transparency, Quality

In recent years, the number of mass proceedings involving a large number of plaintiffs has been increasing. On the plaintiff side, numerous law firms have identified the potential to exploit new or additional revenue potential by standardizing similar cases. On the defendant side, more and more companies as well as public authorities are facing growing challenges to defend themselves efficiently and successfully. The best-known examples are, above all, the diesel proceedings against the major German car manufacturers. In 2020 alone, 30,000 proceedings were pending at the 24 higher regional courts nationwide; in the previous year, the number was as high as 40,000 (FAZ, July 13, 2021). Also not to be underestimated are the lawsuits against various private health insurers for the recovery of premium increases, lawsuits for violations of the General Data Protection Regulation (GDPR), lawsuits in connection with mask procurement or for the recovery of Corona aid or the rejection of applications for Corona aid by the administration.

Investment Firm Remuneration Ordinance – E 2.0

The new consultation draft of BaFin

On 19 October 2022, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, "BaFin") published the updated draft of the Investment Firm Remuneration Ordinance (Wertpapierinstituts-Vergütungsverordnung, WVV-E 2.0) for public consultation. A first draft for the WVV was consulted in May/June 2021 as part of the framework ordinance and did not initially result in a final version. This Client Alert discusses the main substantive provisions of the revised draft.

Employee participation and post-contractual competition prohibition

Consideration of claims from employee participation in the case of compensation payments and other earnings, exclusion of compensation payment

In times of a shortage of skilled workers, employee participation programs play a major role in attracting, motivating and retaining employees, and not just in the startup scene. In the coalition agreement there is at least the announcement that employee participation will be made more attractive - among other things by further increasing the tax exemption. When designing employee participation programs, however, there are not only tax aspects but also many legal points to consider.

Evidence obligation in company pension schemes

No digitization in company pension schemes?

The tightening of the extended obligations to provide evidence according to the Act on Notification of Employment Conditions (Nachweisgesetz, "NachwG"), which came into force on 1 August 2022, led to an avalanche of bureaucracy and a digitization hurdle in labour law, which was often criticized in advance, especially due to the written form requirement, which is now subject to a financial penalty. Even before the reform, obligations to provide company pension schemes in writing existed in various provisions of insurance law, insurance supervision law, data protection law and tax law. In the NachwG itself, the company pension scheme was already regarded as a remuneration component pursuant to Sec. 2 (2) no. 7 NachwG as subject to the obligation to provide information. Following the amendment of the NachwG to include further obligations to provide evidence relevant to company pension schemes and the introduction of the written form requirement, which has been subject to financial penalties, a further look should be taken at company pension schemes and compliance with the legally required obligations should be evaluated for company pension schemes that are mostly regulated outside of the employment agreement. The Client Alert discusses initial practical experience on the effects of the revised version of the NachwG on company pension schemes.

Transactions News

We at Deloitte Legal Germany are constantly advising on numerous complex transactions and challenging projects.

We would be delighted to explain our services portfolio to you and discuss with you how we at Deloitte Legal Germany can assist you with your projects, whether in the field of Corporate Reorganizations, M&A transactions, including carve-outs, general commercial, employment law, IT/IP or LMC/LMS. Just reach out to us!

In order for you to better understand how we have helped other clients, we would like to hereinafter showcase information on a project that our teams have recently advised on.

Acquisition of MARMIND GmbH:
Deloitte Legal advises UNITED Marketing Technologies by DuMont in third transaction this year. The Deloitte Legal team led by partner Michael von Rüden and senior associate Christoph Meves has advised Cologne-based UNITED Marketing Technologies GmbH & Co KG, a subsidiary of German media and tech group DuMont Mediengruppe, on the acquisition of Austrian MARMIND GmbH from UPPER Network Holding GmbH.
More information

Deloitte Legal Webcast Series

In our German language Deloitte Legal Update webcast series, we address current legal issues and developments that are important for corporate practice.

In our upcoming "Legal Update" webcast in January 2023 we will discuss:

Employment law update: Selected rulings at the beginning of the year: In our Deloitte Legal Update webcast series, this time our employment law experts Carmen Meola, Nathalie Polkowski and Robert Erhardt look at selected case law in employment law, in particular decisions of the Federal Labour Court, which are likely to be relevant for employers in business practice or will become relevant in the near future and which were handed down in the course of 2022. | Wednesday, 18 January 2023 | 11:00 - 11:45 a.m.

Register here (Webcast in German language)

You can download the presentation of our recent webcasts here:

• How M&A can help to repair crumbling supply chains - What to watch out for? here (in English language)
• Update on carbon pricing, carbon credits and certificate trading - comments from a tax and legal perspective here (in German language)

In our Webcast Archive, you can find a list of previous webcasts and also download the corresponding presentations.

Should you be interested in topics discussed during one of our German language webcasts, do not hesitate to contact the respective presenters – they will be delighted to provide you with additional information in the English language.