Public Procurement Law
We support you through all phases of public procurement, i.e. from planning the tender process to the award and during the implementation of the public contract. You will benefit from our broad experience in advising both contracting authorities and bidders in a great variety of sectors ranging from IT to defence.
Preparation of the procurement procedure
The time preceding the public procurement procedure is of pivotal importance to the success of the project. Mistakes in the planning and preparation may lead to massive delays and even the failure of the venture. We can advise you in this important phase on choosing the correct procedure, assessing and describing the services or products to be procured, strategies to adopt concerning potential bidders as well as all other legal, technical, economic and contractual issues. This is of particular importance not only for contracting authorities, but also for bidders, whom we advise on the general strategy to adopt in complex procedures.
During the procurement procedure
The purchase of services and products by contracting authorities is subject to a formal procedure governed by strict legal rules. At the same time, the general aims of the project should not be neglected. We can advise you in both regards, whether you are a contracting authority or a bidder. We can assist you in all steps of the procedure and we will deal with any issues that may occur in a pragmatic manner. We can also advise you in special matters such as procurement procedures subject only to EU primary law or the award of concessions.
Performance of the contract
Public procurement rules also have to be taken into account after the contract has been awarded. For example, a substantial change of the public contract may lead to an obligation to re-tender the project. This represents a major risk in particular in cases where a target in an M&A-transaction deals with the public sector on a regular basis. In addition, especially in the area of defence and security, so-called public price reviews provided for in the national laws of some countries may lead to substantial reductions of the amounts to be paid by the contracting authority. We know how to deal with these issues and can assist you in line with the legal provisions and in a pragmatic manner. The same holds true for disputes concerning public contracts, which are often affected by public procurement law.
Public procurement is a litigious area. Disputes are carried out before special review bodies, the courts and, with respect to infringement proceedings, the European Commission/the European Court of Justice. Violations of the law during the procurement procedure, the performance of the contract or regulatory issues may end up in court. In addition, public procurement law and related contractual law issues may play a major role in civil proceedings, in arbitration proceedings, in audits by authorities or in criminal investigations. We know these issues and the procedural aspects to be taken into consideration and advise both contracting authorities and bidders in this respect.
Compliance is becoming increasingly important in all areas, including in public procurement law. Companies that have breached the law may be excluded from public procurement procedures, debarred from future public tenders and sued for damages. We support our clients in the implementation of self-cleaning measures in order to secure their continued participation in public tenders and advise contracting authorities in relation to the preparation and implementation of exclusion and debarment.
Moreover, we advise bidders that seek to regain their reliability during self-cleaning procedures of the World Bank and other multilateral development banks. We also assist sanctioned companies in reviewing their compliance systems by acting as monitors admitted by the World Bank.
Antitrust & Competition
Antitrust and competition law plays an important role in transactions and in the structuring of your distribution and price and rebate systems. Having regard to the ever-increasing activism of competition authorities worldwide and of their fining powers it is of key importance that your company complies with antitrust and competition law.
We advise our clients in relation to the antitrust aspects of M&A transactions and the structuring of cooperation and joint venture agreements. We take care of merger control filings at the German Federal Cartel Office and the European Commission. We coordinate international filings in other jurisdictions for you by cooperating with our specialised partner firms worldwide.
We advise our clients in relation to all aspects of the relationship with their suppliers or distributors/selling platforms. In light of the recent enforcement activity of the German Federal Cartel Office and other competition authorities in the area of vertical restraints including in e-commerce, it is particularly important to comply with the antitrust rules governing the vertical relationship between suppliers and distributors. In light of our experience with and knowledge of the enforcement priorities of competition authorities we help our clients develop commercially sensible distribution and licence models and advise them in relation to all aspects of their distribution contracts.
Behavioural advice and abuse of dominance proceedings
We provide advice in relation to unilateral market and pricing strategies and the structuring of rebate systems. We represent our clients in abuse of dominance investigations by competition authorities and in relation to complaints against the abusive behaviour of third parties.
We can advise your company on how to handle cartel infringements strategically (defensive strategies vis-à-vis competition authorities, leniency applications to the German Federal Cartel Office and/or the European Commission, internal investigations within the company) and represent you vis-à-vis the investigating authorities. Cartel arrangements are typically entered into globally and are often investigated by several international competition authorities in parallel. It is therefore important that companies adopt a coordinated approach vis-à-vis the different investigating bodies. By cooperating closely with our specialised partner firms we can help our clients to ensure a coordinated approach and seamless representation worldwide.
We can help you develop and implement effective compliance systems. We support our clients in training their employees with the aim of avoiding cartel infringements (e.g. trainings regarding their employees’ contacts with competitors, how to behave during inspections by enforcement authorities, how to behave in trade association and other industry meetings, how to behave vis-à-vis suppliers and distributors or guidelines for benchmarking projects) and to deal with such infringements in the right way once detected.
We can also advise you in relation to corruption/anti-bribery and public procurement law issues which sometimes come up in the context of breaches of antitrust law.
We advise both government authorities and companies in relation to state aid measures in all industries and in relation to public funding opportunities for certain investments or divestments. We represent our clients vis-à-vis the European Commission as well as European and national courts.
Market investigations and sector inquiries
The German Federal Cartel Office and the European Commission regularly conduct sector inquiries if they have reason to believe that competition in a certain sector is weakened. Recent sector inquiries include the European Commission’s ongoing e-commerce sector inquiry or the German Federal Cartel Office’s sector inquiry into buyer power in the food retail sector. Such sector inquiries can require significant time and cost investments from the companies active in that sector. We can support you through these processes and advise you in relation to your legal obligations and the strategic approach to adopt.
Cartel follow-on damages claims
Follow-on damages claims against companies involved in a cartel are increasingly gaining importance across Europe. The European Commission has recently adopted a directive aimed at facilitating private enforcement, which is currently being implemented by the European Member States. We can advise you in relation to all legal and procedural questions arising in this context and represent you in settlement negotiations as well as court proceedings. By cooperating closely with our specialised partner law firms we will also support you in proceedings in other jurisdictions in Europe and worldwide.
International Trade Law
Our international trade law practice covers a broad range of legal areas, which are mostly governed by international and European law. Trade law is particularly important for globally active companies.
Customs law plays an ever increasing role in a globalised economy. We advise companies on all customs-related issues, including criminal aspects, from customs value to origin and classification and on procedural and anti-dumping matters. We are active in advisory matters and can represent you in negotiations and disputes with customs authorities, ministries and the European Commission as well as in national and EU courts.
National legislators like to to raise monies through excise taxes. These usually have to be paid by companies. We can advise you on all issues that occur in this regard, in particular around energy and electricity taxes but also other excise taxes, e.g. tobacco, nuclear fuel, air passenger, alcohol and insurance taxes. Our advice ranges from issues surrounding the creation of the tax liability, through the amount to be paid, up to exemptions and rebates as well as criminal procedures. We can advise your company before disputes arise and we will represent you in administrative and judicial procedures before customs authorities and financial courts.
We will advise your company on all EU market organisation issues, in particular with regard to the European sugar market, from production levies over export refunds to quota matters. We will represent you in administrative proceedings as well as before EU and national courts.
WTO & EU law
We can advise you in all aspects of WTO law, including the main agreements (WTO, GATT, GATS) as well as more particular contracts such as TRIPS, GPA, DSU and bilateral treaties.
We will advise your company in all export control questions and help you to assess whether exporting or transporting certain products is prohibited or subject to authorisations. We will also assist you in case something went wrong during the export procedure.
We advise on all UN, EU, and national sanctions matters. We have a particular focus on the economically important EU sanctions on Iran, Syria, and Russia. We also help our clients – especially those based in the EU – in dealing with anti-boycott rules, be it in the context of M&A transactions or contractual matters.
Foreign investment control
We can advise you on transactions that may be subject to foreign investment control by the competent national authorities, in Germany the Federal Ministry of Economic Affairs and Energy. We can assist you in drafting the correct wording of the agreements and represent you in the clearance procedure before the national authorities.
Public prosecutors and specialised financial administration authorities have increasingly started to initiate criminal and administrative offence proceedings because of suspected infringements of international trade provisions. We know what to bear in mind in these proceedings and can guide your company safely through them.
Art and cultural property law
Art and cultural property law covers a broad range of legal questions concerning the art market and the traffic of cultural goods. We advise you in disputes concerning the export control of cultural goods, customs law as well as all other legal topics in relation to artworks (e.g. procurement of commissioned art projects, handling forgeries, questions of authenticity and authentification, restitution claims, structuring gallery contracts, handling complex art transactions).
Compliance & Monitoring
Compliance advice is about identifying potential risks and setting up adequate compliance mechanisms customised to your company’s organisation. Complying with legal provisions, guidelines and best practice rules is of key importance to your company in light of increasing regulation and harsh sanctions imposed by authorities worldwide.
We will advise you in relation to:
Antitrust Compliance, e.g. trainings regarding your employees’ contacts with competitors, how to behave during inspections by enforcement authorities, how to behave in trade association and other industry meetings, guidelines for benchmarking projects, how to behave vis-à-vis your suppliers and distributors.
Procurement Compliance, e.g. supporting your company in self-cleaning procedures in order to secure the participation in future tenders and advising government authorities in relation to the preparation and implementation of blacklisting measures.
MDB Compliance, e.g. advising and assisting your company in self-cleaning procedures in accordance with the standards set by multilateral development banks (e.g. World Bank Group Integrity Compliance Guidelines) with a view to lifting any sanctions. Furthermore, we act as World Bank admitted monitors and review compliance mechanisms of sanctioned companies.
Trade Compliance, i.e. advice in relation to compliance with international trade law – either in advisory matters or further down the line in case something went wrong and your company or employees are being investigated.
We can also advise you in relation to corruption and anti-bribery issues which sometimes come up in the context of breaches of public procurement or antitrust provisions.