Extended Review Competence and Longer Review Periods for the German Federal Ministry of Economic Affairs and Energy

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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.

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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.

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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!

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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.

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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.

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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.

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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?

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BLOMSTEIN recently advised the ADM Group on an important customs law question regarding the correct classification of a chemical product used for the manufacture of foodstuffs.

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In a previous post, BLOMSTEIN has discussed the Brexit plan that UK Prime Minister Theresa May has recently presented to the public. In this note, we take a closer look at the Brexit implications for public procurement law.

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