Mobility@McDermott: Monthly Update (09/2023) - McDermott Will & Emery

Mobility@McDermott: Monthly Update (09/2023)


1. German parliament passes amendment of Competition Act

The German parliament has amended the German Competition Act (Gesetz gegen Wettbewerbsbeschränkungen). The changes are intended to speed up sector investigations under antitrust law. The updated legislation also enables the German Federal Cartel Office (Bundeskartellamt, “BKartA”) to impose new measures following sector inquiries. This includes lowered requirements for the BKartA to order companies to notify future transactions even if these do not meet the applicable filing thresholds. Where a sector inquiry leads to the finding of the existence of a “significant and continuous disturbance of competition”, the BKartA will moreover be able to impose behavioral remedies. In extreme cases where a dominant company is concerned, the BKartA would even be able to impose structural remedies including ownership unbundling, even if no violation of antitrust laws can be established. In addition, the introduction of a legal presumption, according to which an antitrust violation has conferred an economic benefit of at least 1 % of the domestic turnover achieved with the products or services to which the infringement relates, will make it easier for the BKartA to confiscate (disgorge) the profits resulting from such antitrust violations. Also, the BKartA has been given the task of enforcing certain provisions of the Digital Markets Act, in particular to facilitate private enforcement in cartel cases.

Further details here (available only in German)

Relevant for: Mobility providers, vehicle manufacturers, supplier, vehicle platform providers

2. No antitrust concerns about cooperation in the automotive industry in standardizing the production of wire harnesses

The German Federal Cartel Office (Bundeskartellamt, “BKartA”) has announced that it no longer has any competition law concerns with regard to the cooperation concerning the standardization of and the planned DIN standard for the production of wire harnesses, which is the first cooperation of its kind in the automotive sector worldwide. The cooperation in-volves various companies from all stages of the value chain in the automotive industry.

It is foreseeable that wire harnesses will become even more complex due to the increasing digitalization in the automotive sector. The cooperation aims to simplify and automate the still largely manual production process of the cables by standardizing wire harnesses which are currently different for each vehicle type and therefore require the installation of special equipment.

From a competition law point of view, such a “mixed” cooperation that comprises both elements of research and development (R&D) as well as elements of standardization has to be assessed on a case-by-case basis, since different criteria apply to the competition law com-pliance of R&D cooperation projects and cooperation projects in the area of standardization.

In the field of R&D, it is usually considered undesirable if the majority of companies in a market pursues one single technology path at an early stage of seeking new solutions.

Now that the parties have restructured the cooperation and made a clearer separation between the R&D parts and the standardization parts of the project following the BKartA’s guidance, the latter sees no reason to intervene at present.

Further details here (available in English)

Relevant for: Vehicle manufacturers, suppliers

3. Amendment of the clean-vehicle procurement law

Legislation to change the clean vehicle procurement law has been introduced into the German parliament, according to which low-emission and zero-emission vehicles are to be promoted within the framework of public procurement. Synthetic paraffinic diesel fuels from fossil sources or critical biogenic raw materials (e.g. palm oil) are to be excluded in order to achieve the legally prescribed minimum procurement targets for clean heavy commercial vehicles.

This initiative blends in a wide variety of legal actions to support climate protection and sustainability by setting an example in the public sector. Award criteria as “energy consumption” or “environmental friendliness” have become increasingly relevant in public procurement procedures with the intention to initiate similar activities in the private sector and to serve as a role model in terms of both social and economic aspects. Further details here (available only in German)

Relevant for: Mobility providers, public transport companies, vehicle manufacturers

4. EU Commission to investigate Chinese e-car subsidies

Commission President Ursula von der Leyen announced an anti-dumping investigation into electric cars from China, saying their price was being artificially depressed with state subsidies in Beijing and that Europe was open to competition but not to unequal undercutting. EU finance ministers, including German Finance Minister Christian Lindner, welcomed the planned investigation, which could lead to trade restrictions and import tariffs.

An anti-subsidy investigation based on the EU’s anti-subsidy regulation usually takes 13 months. During this time, the EU Commission will ask affected companies as well as the government concerned (here: China) to deliver information on the issue. However, Beijing’s track record is less than shining when it comes to transparency on how it subsidizes compa-nies. Once the investigation starts, the Commission has up to nine months to disclose its provisional findings and publish the provisional measures it decides to apply. After another four months at the latest, the Commission will have to publish the definitive measures it wants to take.

Further details here  (available in English)

Relevant for: vehicle manufacturers

5. Supporting of the development of fast-charging no-public infrastructure for cars and trucks

The Federal Ministry of Digital Affairs and Transport (Bundesministerium für Digitales und Verkehr, “BMDV”) is supporting companies with a new funding program of up to EUR 400,000,000 to set up fast-charging infrastructure for cars and, for the first time, charging points specifically for trucks without combining them with vehicle procurement as before. Funding is available for non public fast charging points with a charging capacity of at least 50 kW and the necessary grid connection.

Companies in the commercial sector and companies with public participation are eligible to apply. Capital expenditure for fast-charging infrastructure and technical equipment (e.g. elec-tric storage) as well as expenditure for grid connection and installation of electrical lines and connections, including underground construction, are eligible for funding. Applications can be submitted since 18 September 2023 via the project management organisation Jülich and can be found here.

Details for the funding can be found here (available only in German).

Relevant for: Eligible companies, e.g.  transport and logistics companies, parcel services, rental car and car sharing providers as well as care services