ECJ Strengthens Right to Self-Determination
The European Court of Justice (ECJ) delivered a judgement with potentially far-reaching consequences for companies’ liabilities in public international law. On 27 February 2018 (Case C-266/16 – Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs), the ECJ ruled on the validity of the Fisheries Partnership Agreement between the EU and Morocco (the Fisheries Partnership Agreement or the Agreement). The Court concluded that the Fisheries Partnership Agreement was not applicable to Western Sahara and its adjoining waters. Although the underlying circumstances are rather specific, the case deals with general issues of public international law. Companies engaging in commercial activities in this region or other disputed territories should, therefore, carefully examine the judgement’s impact on their businesses. The case is a vivid reminder that trade and investment in disputed areas bear significant political and legal risks.read more
State Aid and the Energy Sector
The new work State Aid and the Energy Sector edited by Leigh Hancher, Adrien de Hauteclocque and Francesco Maria Salerno has been published by Hart Publishing and is now available for purchase.
BLOMSTEIN partner Max Klasse has co-authored the chapter on “Aid to Nuclear and Coal” with Professor Leigh Hancher (Tilburg University), which focuses on energy aid with a distinguished historical pedigree: aid to nuclear and coal. The chapter also provides insights into the relation between the EU State aid rules and the Euratom Treaty, which governs most aspects of the nuclear sector.read more
Excise duty expert joins BLOMSTEIN
Excise duty expert Hardy Bublitz joined BLOMSTEIN as independent Senior Excise and Trade Advisor in February 2018. Hardy Bublitz, 58 years old, is a renowned expert in excise duties, especially with regard to energy and electricity taxes. He began his career in 1982 in the Federal Customs Administration, where he worked inter alia as an auditor in the mineral oil industry. In 1985, Hardy Bublitz joined Shell, where he held various executive positions until the end of 2017 – most recently as Head of Indirect Tax Advocacy & Litigation DACH (Germany, Austria and Switzerland). Hardy specialises in European and national customs law and excise duty law as well as indirect tax compliance. He is a distinguished speaker at events and trade conferences, and an esteemed lecturer in excise duty trainings and in-house seminars.read more
BLOMSTEIN amongst the top 50 employers
BLOMSTEIN ranks 43rd in the 2018 edition of the annual azur100 ranking of the top 100 employers for lawyers.read more
Less taxation on flavoured beer?
The ECJ is about to clarify how excise duties on beer are calculated and whether there is a specific tax duty on flavoured beer. In a request for a preliminary ruling, a Polish court asked for clarification whether substances added after fermentation (e.g. sugar, flavours) may be taken into consideration in the overall calculation of the beer tax. The Advocate General took the position that this should not be the case and that substances added after fermentation should not increase excise duties.read more
The Lawyer European Awards 2018
BLOMSTEIN is proud to have been shortlisted in two categories for the The Lawyer European Awards 2018: Law Firm of the Year: Germany and European Specialist Law Firm of the Year and to have been “highly commended” as European Specialist Law Firm of the Year.read more
EU defence coordination: PESCO finally on the way
On 11 December 2017, a Council Decision finally established the Permanent Structured Cooperation (PESCO) in defence. The Council Decision was ultimately approved by 25 Member States, less than a month after a joint notification by the ministers of 23 Member States on their intention to participate. Along with the Council Decision, the participating Member States published an initial list of collaborative PESCO projects. These include research, procurement and upgrade projects regarding a variety of sectors, including prototypes for infantry vehicles, autonomous maritime surveillance systems and mine countermeasures, cyber security, radio and indirect fire support solutions, logistic hubs, operational support, military mobility measures and the establishment of a European Medical HQ, as well as training centres.
The pending implementation of PESCO for European defence projects raises a number of questions. We will focus on the effects on future defence procurement.read more
ECJ: Third-party Platform Bans Permissible
Can suppliers prohibit their authorised distributors from selling luxury products on third-party platforms such as Amazon or eBay? In its judgement of 6 December 2017 (Case C-230/16 – Coty), the European Court of Justice (ECJ) finally had the chance to shed some light on this highly-debated issue. Both suppliers and distributors have waited with great anticipation for a clarification from Luxembourg. The ECJ now took a supplier-friendly stance and confirmed that platform bans for luxury goods are not per se anticompetitive.read more
Recent Extraterritorial US Sanctions and EU Reactions
On 13 October 2017, President Trump refused to “recertify” the international nuclear understanding with Iran (Joint Comprehensive Plan of Action, JCPOA).
On 31 October 2017, 41 individuals and entities associated with the Islamic Revolutionary Guard Corps (IRGC) have been designated under US terrorism sanctions. These new designations are part of a growing trend towards unilateral US sanctions imposed without prior consultation or coordination at an international level.
In the following, we give an overview of this trend, taking the recent US developments regarding the JCPOA and the US sanctions on Russia as examples. We examine the potential repercussions of these US sanctions for EU companies and potential reactions by the EU.read more
BLOMSTEIN proudly presents...
We are proud to have been announced as the winner in two categories of the prestigious JUVE awards on 26 October 2017 at a gala ceremony hosted by the legal publishing house JUVE at the Opera house in Frankfurt. BLOMSTEIN was awarded the Start-Up of the Year award and the Law Firm of the Year for Public Procurement Law already in our first year on the market. The JUVE Awards are considered the most prestigious industry awards in the German legal market.
„The Berlin based boutique that opened in 2016 has already become a well-established market player. Competitors rave about the ‘excellent legal expertise combined with international experience’ of the Freshfields-Spin-off. ‘Combining the practice groups Public Procurement, Antitrust and State Aid plays out extremely well.’“read more
World Bank: Fourth Suspension and Debarment Colloquium
Introduction of a European Investment Control
The control of foreign investments has become increasingly important in the last few years. In Germany, the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – AWV) has recently been amended. Moreover, for the first time, foreign investments in Germany were prohibited. In the USA, prohibitions have increasingly been issued by CFIUS and extremely long durations of proceedings are being reported. On the initiative of Germany, France and Italy, the European Commission (Commission) has now also taken up the issue: On 13 September 2017, the Commission submitted a Proposal for a Regulation Establishing a Framework for Screening of Foreign Direct Investments into the European Union (Regulation Proposal).read more
BLOMSTEIN shortlisted for 2017 JUVE Awards
BLOMSTEIN is proud to be shortlisted in two out of eighteen categories for the 2017 JUVE Awards: The Start-Up of the Year (Gründerzeit-Award) and the Law Firm of the Year for Regulated Industries. The winners will be announced on 26 October 2017 at a Gala ceremony hosted by the legal publishing house JUVE at the Opera house in Frankfurt. The JUVE Awards are considered the most prestigious industry awards in the German legal market.read more
ECJ: Clarification on competences regarding Free Trade Agreements
The failure of the Doha Round and other multilateral efforts to liberalise trade has led to international trade policy occurring mainly on a bilateral level. The EU in particular has followed an active commercial policy in recent years. The aim of the resulting so-called “new generation” Free Trade Agreements is not only to facilitate cross-border trade of products, but also to develop international supply chains, to create mechanisms for the implementation and the enforcement of the law and to open the market as a whole. Hence, Free Trade Agreements include a wide range of regulations, which go beyond classic regulations to reduce tariff and non-tariff trade barriers.
The comprehensive regulatory content of bilateral trade agreements raises the question: does the EU have the competence to conclude such trade agreements? This question was the subject of the request for an opinion by the European Commission before the Court of Justice of the European Union (CJEU). The proceeding concerned the Free Trade Agreement with Singapore. The court published its highly anticipated opinion on 16 May 2017 (C-2/15 – the Opinion).read more
The Award of Rescue Services: Higher Regional Court Düsseldorf submits Controversial Legal Questions to the ECJ
BLOMSTEIN achieved an important success before the Higher Regional Court (HRC) Düsseldorf for the Falck-Group. On 12 June 2017, the public procurement division submitted several questions to the ECJ about the interpretation of public procurement law in order to clarify controversial and fundamental legal questions concerning the award of rescue services (Az VII Verg 34/16). The ECJ’s decision on these legal questions will significantly influence the market for rescue services. The ultimate aim is to clarify whether private service providers will have a realistic chance of fair competition concerning public procurement in this market segment in Germany.read more
The “register of competition” - Good things come to those who wait?
The idea of a nationwide “register of corruption” which, among other things, registers white-collar crimes and respective administrative offences has haunted the German procurement law world for years. A bill bringing this idea to fruition was recently passed. The register must be established by 31 December 2020 and will replace the existing registers of some of the German federal states. Before awarding a contract, contracting authorities must consult the register and may exclude companies with a high degree of legal certainty on the basis that the company is listed on the register. Besides administering registrations, the German Federal Cartel Office as the responsible registration authority will also evaluate whether a registered company has implemented sufficient self-cleaning measures. In this case, the company will be removed from the register and be able to participate in public procurement procedures again. The implementation of this bill will have far-reaching impacts on procurement law practice in Germany.read more
TV interview with Anna Blume Huttenlauch
In light of the recent media reports on possible cartel allegations against German car manufacturers, our partner Anna Blume Huttenlauch was interviewed by Deutsche Welle on the fine line between legal cooperations among competitors and illegal collusion as well as potential fines and other liability risks for companies involved in cartels.read more
BLOMSTEIN supports Humboldt Jessup Team
BLOMSTEIN proudly supports the Humboldt Jessup Team, which won the national finals of the Philip C. Jessup International Law Moot Court Competition in Passau as well as several awards (Best Memorial Runner-up Award, Best Oralist of the championship round). We wish the best of success to Louise Majetschak, Philipp Schoenberger, Moritz Schramm and Isabel Walther for the international finals in Washington D.C. in early April 2017!read more
ECJ: Interest from the Date of Payment of Duties to be Reimbursed
In a judgement on 18 January 2017 (C-365/15 – Wortmann) the ECJ stressed that Member States are obliged to pay interest on duties levied in breach of EU law from the date that these duties were paid. The ECJ thus continued its previous case law from cases Jülich II (joined cases C 113/10, C 147/10 and C 234/10), Littlewoods Retail (C-591/10) and Irimie (C-565/11) and extended it to the EU Customs Code’s scope of application. In comparison to the Court’s judgement in Jülich II, achieved under participation of BLOMSTEIN Of Counsel Hans-Joachim Prieß, in this judgement, the ECJ for the first time establishes for “circumstances such as those in the case in the main proceedings” that Article 241 Customs Code (CC) does not exclude the payment of interests – even though this provision generally exempts customs authorities from the obligation to pay interest.read more
Change in Practice of Foreign Investment Control in Germany?
In Germany, acquisitions of companies by foreign investors are subject to investment control in certain sensitive areas. The control regime is aimed at safeguarding essential security interests and limiting foreign influence on German key industries and technologies. It varies depending on the industry concerned: A notification and clearing requirement only applies to acquisitions in the areas of certain military and IT security products. Other acquisitions in industries relevant to Germany’s public order or security are subject to voluntary notification. In such cases, companies may ask for a comfort letter from the authorities, the so-called certificate of non-objection.read more
Words put to action: How can the EU react to a protectionist US policy?
Donald Trump’s announcement to become a president unlike any Washington has ever seen has materialised in relation to international trade and international relations: Trump wants to make America great again by means of protectionist measures. Which consequences may arise and how can the EU react?read more
Brexit & Trade: Is the UK following the “Mexican way”?
On 17 January 2017, British Prime Minister Theresa May presented her plan for the UK’s withdrawal from the EU in a speech given at Lancaster House in London (hereinafter the “Brexit plan”). May made clear that the UK seeks a free trade agreement for its future cooperation with the EU. BLOMSTEIN discussed the possible models of future cooperation between the UK and the EU in a previous post. In this contribution, we will look at the implications that the Brexit plan may have on foreign trade law.read more
Good things come to those who wait? – The German Federal Ministry of Economics and Energy submits a draft bill for a so-called “register of competition”
The idea of a nationwide “register of corruption” has haunted the German procurement law world for years. Now the German Federal Ministry of Economics and Energy has got serious: On 20 February 2017 the ministry presented a draft bill (WRegG-E) for a law to establish a so-called “register of competition” (Wettbewerbsregister). According to this draft bill, the register is to be established in 2019. Different economic crimes and administrative offences may be registered. Besides administering registrations, the responsible register authority is also tasked with evaluating whether a company has implemented sufficient self-cleaning measures and is therefore able to be delisted and to participate in public procurement procedures again. Contracting authorities must consult the register (even if the relevant EU threshold is not met) before awarding a contract and are allowed to exclude companies on the basis that the company is listed on the register with a higher legal certainty. The implementation of this draft bill would have far-reaching impacts on procurement law practice in Germany.read more
Post-Brexit: The Road Ahead for UK-EU Cooperation in Economic and Trade Policy
British Parliament approved Theresa May’s roadmap for Brexit negotiations on 7 December 2016. Under this roadmap, the UK will commence withdrawing from the EU on 31 March 2017. Article 50 TEU puts a cap of 24 months on the withdrawal process. If and how the UK and the EU will cooperate in the post-Brexit world has been the subject of much speculation.
In the following we assess these possible forms of cooperation. Further updates on Brexit’s implications on public procurement, international trade and competition law will follow.read more
End of Year Competition Law Roundup
Over the last two weeks a number of important events for the antitrust community took place. Competition officials from across Europe shared some interesting insights and outlooks on 2017 which we would like to pass on to you in order to alert you to some developments to expect.read more
Trump & Trade: Also EU companies affected by US elections
The US presidential election could – judging from the statements in President-elect Trump’s election campaign – have far-reaching effects also for European companies. According to the new President’s election campaign, his political priorities include, on the one hand, the dismantling of the Joint Comprehensive Deal of Action (JCPOA) with Iran which he has called a “disaster” and, on the other hand, a substantial increase of tariffs on imports in order to promote the US economy.read more
Increased requirements for German examinations of corporate acquisitions by Chinese investors
Last week the business press reported on difficulties in the planned purchase of German companies by Chinese investors. Pursuant to the reports, the German Federal Ministry for Economic Affairs and Energy revoked the initially granted certificate of non-objection for the acquisition of Aixtron. Moreover, the Ministry apparently also denied to issue a certificate of non-objection for the acquisition of Osram’s lamp division Ledvance.read more
7th German Energy Tax Day
On 8 and 9 of December, the Federation of German Industries (BDI) hosted the 7th German Energy Tax Day (Energiesteuertag) together with BLOMSTEIN and others. The conference took place in Berlin and offered all relevant stakeholders the opportunity to discuss current topics around energy and electricity taxes.read more
Excise Duties – ECJ Strengthens Rights of Companies with Three Important Decisions
The European Court of Justice (ECJ) has recently emphasised the importance of the general principles of EU law – in particular the principle of proportionality – for the interpretation of the excise duty directives. The fact-based and flexible interpretation is a welcome development and should lead to a limitation of the overly formal interpretation of excise duty legislation in many EU member states, based on a proper assessment of individual cases.read more
BLOMSTEIN organised Focus Day IT Procurement on Public Procurement Law Conference "Brennpunkt Vergaberecht!"
From 8 to 10 November 2016, the 20th annual EUROFORUM Conference on Public Procurement Law “Brennpunkt Vergaberecht!” took place in Düsseldorf. The conference focused on the current reform of EU/German public procurement law and its effects on public procurement in practice. Renowned experts from industry, administration, judiciary and law firms gathered to share their views on the reform and discuss topics of high practical relevance.read more
"Rising Star" Recognitions
Legal Media Group’s Expert Guides recognizes two BLOMSTEIN partners as rising stars. Roland Stein (for International Trade), for the second consecutive time, and Max Klasse (for Competition and Antitrust) have been named “Rising Stars” in the 2016 edition of the Guide to Leading Attorneys – Expert Guides.read more
No new Iran sanctions (yet)
In spite of adverse publicity on Iranian nuclear procurement activities and the Iranian rocket program in the last couple of days, a snap back of the lifted sanctions against Iran is currently not pending.read more
Competition Law Reform in Germany - Long awaited draft legislation published
The German Federal Ministry for Economic Affairs and Energy has presented its long awaited proposal for the draft legislation implementing the European Commission’s damages directive (the Directive) into German law (link). The draft legislation (the Proposal) is part of a wider reform of the German Act against Restraints of Competition (ARC), which addresses the following aspects:
- Implementation of the Directive
- Closing the so-called “sausage gap”
- Dealing with certain challenges brought about by digital transformation.
Post-Brexit: Companies on both sides of the Channel must prepare for uncertain times ahead
Aside from the political, social, cultural and economic dimensions that have been debated extensively over the past months, the vote of the British people to leave the EU will have legal implications that cannot be fully grasped yet in their full scope. Nonetheless, companies on both sides of the channel must already prepare today.read more
Competition and data
What can be inferred for the Facebook investigation from the report on competition and data co-published by the Bundeskartellamt?
The investigation of the German Federal Cartel Office (FCO) against Facebook because of suspicions that Facebook may have abused a possibly dominant position has prompted a considerable echo, not only among antitrust lawyers. The FCO is currently investigating (i) whether Facebook may have a dominant position in the market for social networks and (ii) whether it may have abused such position with its specific terms of service on the use of user data.read more
BLOMSTEIN advises Siemens AG in litigation in front of the Federal Supreme Tax Court
BLOMSTEIN has advised Siemens AG in its litigation against the main customs office Munich (HZA) in front of the Federal Supreme Tax Court.read more
Freshfields partner and former federal judge join BLOMSTEIN as Of Counsel
BLOMSTEIN is pleased to announce that Reinhart Rüsken has joined the firm and Dr. Hans-Joachim Prieß will join the firm as of 1 May 2016. Both will act as Of Counsel and assist BLOMSTEIN’s clients particularly in international trade and public procurement matters.read more
ADM succeeds in customs law proceedings before the CJEU with BLOMSTEIN
On 7 April 2016, the Court of Justice of the European Union (CJEU) confirmed the position of our client ADM in a legal dispute with the German customs authorities (case C-294/14). ADM had brought action against an import duty assessment of the Regional Customs Office of Hamburg before the Finance Court of Hamburg, which submitted the case to the CJEU for a preliminary ruling. The CJEU now confirmed ADM’s legal interpretation of EU customs laws.read more