Kai Struckmann

Local Partner, Brussels

Biography

“Outstanding specialist. […] His remarkable experience in European law has gained the practice much respect.”
JUVE, 2018

Overview

Kai advises and litigates on a broad range of questions of EU law, with a focus on competition and State aid.

He is recognised as a thought leader by Who's Who Legal in its Global Elite ranking for Competition -State aid.

He has extensive expertise concerning the application of the EU competition and State aid rules in the energy sector and their interaction with the EU regulatory regime and is the co-author of the energy chapter in "EU State Aid Control – Law and Economics" published by Wolters Kluwer. Kai is a Core Team member of the Firm's Energy Transition Focus Group.

Kai also frequently represents clients in antitrust investigations. His experience in this area includes his involvement in two major antitrust investigations involving the Bulgarian energy conglomerate BEH and subsequent litigation defending BEH against the first fining decision adopted by the European Commission under Article 102 TFEU in the energy sector as well as one of the first two cartel settlement cases before the European Commission.

Kai has developed a strong track record representing clients before the EU courts in Luxembourg, where on several occasions he has obtained the annulment of Commission decisions and fines and is currently involved in a number of ongoing litigations including the landmark Micula case involving State aid and arbitration.

Kai's knowledge of competition law is reinforced by his experience working as an official in the European Commission's Directorate General for Competition prior to joining White & Case. In this position, he was responsible for the enforcement of State aid policy at the (then newly created) Enforcement Unit. Prior to this, he handled individual State aid investigations in one of the Directorate's sectorial units.

A regular speaker at academic conferences and industry events, Kai is also a prolific writer on legal developments and the author of many academic publications.

Bars and Courts
Regional Court of Hannover
Brussels Bar (E list)
Education
Second State Examination in Law
Judicial Examining Board of Berlin
Master of Law
in European Law
University of Nottingham
Judicial Examining Board of Lower Saxony

First State Examination in Law

Languages
English
French
German
Spanish

Experience

Victory before the General Court
Kai successfully represented a number of Romanian investors who succeeded in obtaining an award of damages of EUR 82 million against Romania for a breach of a Bilateral Investment Treaty, but faced a European Commission decision that the payment of such damages constitutes illegal State aid that must be repaid. The EU General Court annulled the decision in full.

Sanitec's proceedings in the General Court of the European Union
Kai successfully represented Sanitec Europe in its appeal before the General Court of the European Union in Luxembourg. The General Court reduced the fine jointly and severally imposed on Sanitec and certain of its subsidiaries by approximately €7.1 million. A 2010 Decision by the European Commission had originally imposed fines of more than €622 million on 17 bathroom fixtures and fittings manufacturers. This complex appeal involved analysing evidence in five languages, and highlighted Kai and the Brussels team's ability to handle multi-lingual cartel litigation.

RWE's sale of NET4GAS
Kai was part of the international team which advised RWE AG, a leading European electricity and gas company, in connection with the sale of its 100 percent share in NET4GAS, s.r.o., the Czech gas transmission system operator, to a consortium of Allianz and Borealis Infrastructure. The consortium acquired the shares for an enterprise value of almost €1.6 billion. Kai provided support to the Prague and London teams who were helping RWE to navigate this complex business transaction.

Victory for Czech Airlines
Kai co-led the international team of lawyers which secured a significant victory for České aerolinie, a.s. ("Czech Airlines"). The European Commission determined that CZK2.5 billion in restructuring aid, originally provided to Czech Airlines in April 2009, was in line with European Union (EU) state aid rules. Following an in-depth review, the Commission noted that the airline's restructuring plans, consisting of capacity reduction, efficient cost and revenues management and the sale of assets, should ensure the company's viability.

Significant victory in Sodium Chlorate Cartel Case
Kai achieved a significant victory for his clients Aragonesas and Uralita when the European Union (EU) General Court annulled €9.9 million of fines imposed as a result of Aragonesas' part in a sodium chlorate cartel.

US$3 billion BAWAG PSK restructuring
Kai represented the steering committee of lenders in the financial restructuring of a US$3 billion loan provided to Sacher Funding Limited, an affiliate of BAWAG PSK, one of the largest commercial banks in Austria, with approximately 150 bank branches and more than 1200 post office branches. This was a complex transaction which required great care, negotiating skills, and commercial awareness.

Energy Interconnection
Kai advised clients on the competition and EU energy regulatory law aspects of a number of electricity interconnection and gas pipeline projects.

Energy & Competition
Kai represented a number of energy companies in EU Commission antitrust and State aid investigations.

Antitrust Litigation
Kai represented various clients in antitrust investigations by the EU Commission and subsequent litigation before the EU courts, which in two cases led to the partial annulment of the Commission Decision, including the imposed fine.

Spanish Tax Lease Litigation
Kai represented the Dutch Shipbuilding Association in litigation before the EU courts in an annulment action regarding an EU Commission Decision on a Spanish Tax Lease scheme.

Speaking Engagements

"Damages actions and injunctive actions in national courts" and "Case study: Bringing an action for recovery of State aid before a national court", 24 May 2019: ERA EU State Aid Litigation conference, Brussels

"Investment Treaties, State Aid and International Arbitration", 5 July 2018: Informa State aid conference, Brussels (panel speaker)

"State aid and arbitration, and the treatment of Bilateral Investment Treaties", 20 June 2018: Berlin Round Table on European State Aid Law (Berliner Gesprächskreises zum Europäischen Beihilfenrecht), Berlin (presenter)

"Damages actions and injunctive actions in national courts" and "Case study: Bringing an action for recovery of State aid before a national court", 18 May 2018: ERA EU State Aid Litigation conference, Brussels

"State Aid and International Law: Enforceability of Arbitral Awards under EU State Aid Law", 10 November 2017: European University Institute Training Course, Brussels

"Bank recovery and resolution measures and State aid: The issue of non-performing loans and 'failing' banks", 9 November 2017: ERA Annual Conference on European State Aid Law, Trier

"State aid in infrastructure investment", 30 November 2016: GCR Live - State Aid, Brussels, (panel speaker)

"Regulatory Developments in the Energy Sector", 15 November 2016: IBC Competition Law and Regulation in the Energy Sector 2016, Brussels, (panel speaker)

"Damages actions and injunctive actions in national courts", 20 May 2016: State Aid Proceedings and Litigation conference organized by ERA, Brussels. The presentation was part of the morning session on "Enforcement of State Aid Law in National Court Proceedings", of which he was also the chair.

"State aid in privatization and restructuring", 18 February 2016: Conference on State Aid and the EU Accession Process organized by the Chamber of Commerce and Industry of Serbia, Beograd, (presenter)

"When State aid met tax: A practitioner's view on recent investigations into transfer pricing", 25 January 2016: Lunch seminar organised by Concurrences Journal, Brussels, (presenter)

Publications

Chapter on "PreussenElektra – Dead or Alive?", Milestones in State Aid Case Law: EStAL's First 15 Years in Perspective, European State Aid Law Quarterly, December 2017

Chapter on "Energy and Environmental Aid" in EU State Aid Control - Law and Economics, (edited by Philipp Werner & Vincent Verouden, co-author: Wolters Kluwer, The Netherlands 2017)

Investor-State Arbitrations and EU State Aid Rules: Conflict or Coexistence?, European State Aid Law Quarterly (EStAL), Volume 15 (2016), Issue 2, pp. 258-269, (co-author, with G. Forwood, A. Kadri)

Private Enforcement of Contract Ineffectiveness: A Practitioner's Point of View, European Procurement & Public Private Partnership Law Review 1/2014, pp. 27–35, (co-author, with Peter Hodal)

Chapter on "Restructuring aid" in Handbook on Restructuring law, (edited by Dr. Rüdiger Theiselmann, co-author: Wolters Kluwer, Germany 2010, 3rd edition 2017 )

(Not) breaking the bank–options available to companies unable to pay cartel fines, The Commercial Litigation Journal, Number 37, May – June 2011, (co-author, with Genevra Forwood)

German Federal Court of Justice strengthens procedural rights for competitors of recipients of potential State aid, European State aid Law Quarterly No. 2 2011, News from the Member States, (co-author, with Christoph Arhold, Franziska Zibold)

Rien ne va plus? Mutual recognition and free movement of services in the gambling sector after the Santa Casa judgment, European Law Review, (35) pp. 236–262, April 2010, (co-author, with Anthony Dawes)

State subsidies to digital terrestrial TV, Satellite Finance, Issue 80, p. 38, 18 May 2005, (co-author, with Rolf Olofsson, Partner, White & Case Brussels)

A New Perspective for Spanish Shipyards–Reducing Distortions in Shipbuilding, EC Competition Policy Newsletter, page 5, January 2005, (co-author, with Hans Bergman, Directorate-General Competition)

Awards and Recognition

Who’s Who Legal Thought Leaders Global Elite - Competition - State Aid, 2021