Thomas Funke leads the competition practice at Osborne Clarke in Germany. He led the defence in German and EU antitrust investigations of key players from the automotive, energy, banking and technology sectors. He has also been recognised as a leading expert for merger control, vertical restraints and the motor vehicle sector. A successful cartel damages litigation pioneer, he secured decisions from the European Court of Justice and the German Supreme Court (C-352/13, T-345/12, T-437/08).
WHAT MOTIVATED YOU TO SPECIALISE IN COMPETITION LAW?
In addition to the law, economics and European politics have always intrigued me. Competition law relates to these fields, and allows me to practice in an international context.
HOW HAS THE PRACTICE OF COMPETITION LAW CHANGED SINCE YOU BEGAN YOUR CAREER?
Competition compliance increasingly requires efforts around the world. More companies need to look to more jurisdictions. In this sense, Asia is becoming just as relevant as North America or Europe. Damages litigation is also trending, even though European enforcers continue to focus on colossal fines rather than compensatory justice.
WHAT DO YOU ENJOY MOST ABOUT WORKING IN COMPETITION LAW?
Bringing new ideas to life and solving problems along the way. Access to information in cartel cases used to be a grey area, and through our Supreme Court litigation we were able to shed some light on it. We convinced competition authorities not to fine clients in several cases. Or, we were among the first to advise on connected car data. I also remember obtaining clearance for Europe’s first integrated cross-border long-distance gas pipeline network, with both parties to the transaction super-dominant in neighbouring markets. It was hard work, but it produced results.
WHAT HAS BEEN THE MOST INTERESTING LEGAL INNOVATION TO COME OUT OF YOUR WORK ON CARTEL CASES?
Our preliminary reference to the EU’s highest court helped clarify how and where companies affected by cartels can claim damages effectively. This was a major step along the way. Private litigation is now an important part of every major European competition practice.
HOW HAS THE EUROPEAN COMMISSION’S INCREASED INTEREST IN VERTICAL RESTRAINTS IN CARTEL CASES IMPACTED YOUR PRACTICE?
Different approaches in the EU member states to vertical restraints and platform distribution required the Commission to step in and resume the lead.
In our defence in an e-commerce investigation, we are exploring how the Commission can reward cooperation in a vertical restraints case. Leniency and settlement procedures were designed for horizontal matters, but why shouldn’t they produce benefits in less severe cases also?
AFTER CRITICISM OF THE FEDERAL CARTEL OFFICE FOR NOT FOLLOWING DUE PROCESS FOR SETTLEMENTS, HOW DO YOU THINK THE APPROACH TO SETTLEMENTS WILL CHANGE GOING FORWARD?
Any government agency, in any procedure, needs to observe due process. There must be no arm-twisting. More detailed statutes could be a step towards procedural fairness. Even leniency is so far dealt with in merely lower-level instruments of EU and German law, for the most part. The implementation of the ECN+ Directive will give the EU member states an opportunity for improvement. Not least with view to the rights of customers or other third parties affected by leniency decisions or settlements. We need a bigger role for compensatory justice.
WHAT ADVICE WOULD YOU GIVE TO YOUNGER PRACTITIONERS WHO HOPE ONE DAY TO BE IN YOUR POSITION?
Find out what you are passionate about, and find the right people to pursue these passions together with.
HOW DO YOU SEE YOUR PRACTICE DEVELOPING OVER THE NEXT FIVE YEARS?
Technology will make lawyers more efficient. Data will also be at the heart of competition law developments. Dominance and merger cases need to consider the potential for digital disruption. And in this information age, the traditional scepticism of market transparency should be curbed to encourage innovation.
Thomas Funke is “a leading figure in the German antitrust community” who comes highly recommended by peers, one of whom notes, “He is one of our biggest competitors in the competition litigation space.”
Thomas Funke advises on German and EU cartel investigations, antitrust litigation and merger control.
In the European Court of Justice and the German Supreme Court, Thomas secured decisions in Akzo v Commission (T-345/12), CDC v Commission (T-437/08), the Hydrogen Peroxide litigation (C-352/13) and the German BGH Coffee Roaster cartel damages case.
As lead counsel in German and EU cartel cases, Thomas has represented key players from the automotive, energy, banking and technology sectors. He recently defended a global technology group and an international tour operator in EU antitrust investigations. Thomas also secured expedited German merger clearances for several multibillion-euro life sciences transactions.
As co-leader of the international competition practice at Osborne Clarke, Thomas works from Cologne and Brussels.
He has been recognised as a leading expert for the EU competition framework for the automotive sector. With a focus on aftermarket competition as well as connected and autonomous vehicles, he leads his firm’s transport and automotive sector initiative in Germany.
Thomas has spoken at the ABA Antitrust Spring Meeting and chaired international competition conferences. He has published extensively on the EU block exemptions, antitrust procedure, energy regulation, internet retailing, vertical restraints, damages litigation and merger control.
In addition to an IBA diploma in competition law and his German qualification, Thomas earned a certificate from the University of California and a master's degree from the University of Virginia (LLM), as well as a doctorate in law from Bonn University (Dr jur).