Bundeskartellamt – Review of 2021

In 2021 the Bundeskartellamt

• initiated new proceedings against Amazon, Apple, Google and Meta (formerly Facebook)
• imposed fines amounting to approx. 105 million euros for illegal cartel agreements
• examined approx. 1,000 company mergers
• processed over 140 applications for review in public procurement cases
• launched the Competition Register for Public Procurement

Digital economy
Andreas Mundt, President of the Bundeskartellamt: “Protecting competition in the digital economy remains one of the Bundeskartellamt’s top priorities. Early this year abuse control was improved to enable us to proceed quicker and more effectively against anti-competitive practices by large digital corporations. We immediately initiated new proceedings against Amazon, Apple, Google and Meta and we are vehemently pursuing them so we can present initial results early next year.”

Since 2017 the Bundeskartellamt can, in addition to its powers in the field of competition law, examine economic consumer rights cases, especially in the digital economy. The Bundeskartellamt has since uncovered shortcomings of online user reviews, comparison websites, smart TVs, mobile apps and messenger services.

Andreas Mundt: “Presently, unlike under competition law, we have no power to terminate infringements of consumer rights by companies. I am therefore delighted to hear that the new Federal Government stipulated in its coalition agreement that it is going to look into options to strengthen our position in this respect.”

Cartel prosecution
In 2021 the Bundeskartellamt imposed fines amounting to around 105 million euros on a total of eleven companies and eight individuals. The fines were imposed on special steel producers and steel forging companies and for vertical price-fixing agreements for musical instruments, school bags and consumer electronics. Nine companies informed the authority about infringements in their sector by making use of the authority's leniency programme. Further tip-offs were received from other sources. The Bundeskartellamt conducted two dawn raids in 2021 observing strict Covid-19 hygiene requirements.

Andreas Mundt: “In the last two years we were a little restricted in our cartel prosecution activities by the pandemic. Under such circumstances it is not easy to push ahead with proceedings which rely on dawn raids of business and private premises or hearing witnesses to gather evidence. We are ready to initiate further proceedings next year. There is also new information to suggest that cartels, unfortunately, are not going to go away.”

Merger control
The Bundeskartellamt examined around 1,000 notified merger projects. Of these, 14 were closely examined in the so-called second phase. Three of these were cleared without obligations. One merger was cleared with obligations, so EDEKA was only allowed to take over some of the Real stores. Five notifications were withdrawn by the participating undertakings during the ongoing examination. Funke Mediengruppe’s intended takeover of Ostthüringer Zeitung was prohibited. In four cases second phase proceedings are still ongoing.

Andreas Mundt: “Merger control is our most powerful tool. The Bundeskartellamt has used it very consistently right from the outset. And we will continue to do so, especially in the digital economy, which is often dominated by only a few companies.”

The scope of application of merger control was limited by an amendment to the law early this year. This amendment has not really led to the expected reduction of the authority’s workload. In 2021, approx. 1,000 new merger projects were notified, compared to 1,200 in 2020.

Competition Register for Public Procurement
The Competition Register for Public Procurement was launched at the Bundeskartellamt in 2021. The Competition Register provides over 30,000 public contracting authorities in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.

Andreas Mundt: “The Competition Register is one of the first purely digital company registers in Germany and an important contribution to the fight against economic crime. We launched this ambitious IT project in good time. Since 1 December, prosecutors like customs authorities or public prosecution offices have reported economic offences which are subsequently entered into the register. Contracting entities can consult the register if they have already been registered. As of June 2022, consultation of the register will be mandatory for certain contract values.”