GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
adoption of the EU cartel damages directive. In light of these developments, anonymous tip-offs from employees or complaints from other market participants now play a more important role to uncover cartel activities than ever. The FCO has also bolstered its internal resources, particularly with respect to IT and AI capabilities. 7.8 Domestic v International Investigations The FCO is regularly involved in cross-border cases. The authority aligns its activities closely with international partner agencies in the ECN and ICN. The FCO often provides legal assis - tance for other NCAs and vice versa. This is of particular relevance when it comes to conduct - ing dawn raids on behalf of other NCAs. Such cases then often lead to the FCO initiating its own proceedings if the conduct (also) affected the German market. 7.9 Environmental, Social and Governance (ESG) Cartels The FCO has been dealing with an increasing number of co-operations and initiatives focusing on sustainability. In this respect, the FCO has emphasised its willingness to take sustainability
goals into account when assessing co-opera - tive arrangements between competitors. Recent landmark decisions include the case of Euro Plant Tray, a co-operation of several DIY stores, plant producers and wholesalers, which joined forces to introduce a B2B-system for reusable plant trays to minimise plastic waste. The FCO has not published explicit guidance papers but the case reports in these cases are relatively comprehensive and provide a good understand - ing of the FCO’s reasoning when it comes to taking ESG aspects into account in the assess - ment. The FCO also repeatedly encouraged the parties to sustainability initiatives to approach the authority proactively to clarify questions in this regard. 7.10 Crisis Cartels Experience from previous times of crisis shows that, in times of economic downturn, competi - tors often seek ways to co-operate in order to address increasing costs or insecure supplies. This automatically increases the risk of spill-over effects or even illicit collusion. This trend can already be observed in certain industries – eg, when it comes to joint purchasing agreements, capacity sharing or specialisation agreements.
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