Bundeskartellamt presents its Annual Report for 2022/23

Bonn, 11 July 2023: Today the President of the Bundeskartellamt, Andreas Mundt, presented the authority’s “2022/23 Annual Report”.

Protecting competition in turbulent times

Andreas Mundt: “Even in times of crisis, the Bundeskartellamt's regulatory orientation and focus on consumer protection remain unchanged. The pandemic is behind us, but the impact of Russia’s horrific war of aggression against Ukraine can be felt everywhere. We provide orientation for companies looking at ways in which they can cooperate to weather this crisis. Competition law is sufficiently flexible to make such cooperation possible even if under normal circumstances it would cause competition concerns. Violations of competition law, however, are never justified. Especially in times where inflation contributes to an increased economic strain on consumers, we prosecute anticompetitive practices rigorously. And – although sometimes invisible to the public eye – we are very successful in what we do.”

Abuse control / digital economy

Regarding general abuse control, the past year’s focus was on the transport sector. In June 2023 the Bundeskartellamt directed the German national railway company, Deutsche Bahn, to adjust certain practices and contractual clauses in relation to mobility platforms (see press release of 28 July 2023). In a proceeding against Lufthansa, Condor was secured access to feeder flights (see press release of 1 September 2022; both decisions are not yet final).

The digital economy continues to be a central area of work for the Bundeskartellamt. Numerous proceedings relating to extended abuse control of digital companies were carried out in the past year. Proceedings against Amazon, Apple, Google/Alphabet, Meta/Facebook and Microsoft are ongoing or have already been concluded. Link to list of platforms.

In addition, a sector inquiry into non-search online advertising was concluded in the past year (see press release of 31 May 2023), and new proceedings were initiated (against PayPal, for instance; press release).

Andreas Mundt: “Enforcing the law quickly and effectively is key in the digital economy. Since our powers were extended in 2021, we have been able to better control large digital companies. We have already achieved some tangible initial improvements, and there will be more to come soon. Data access and market power are closely linked in the digital economy. The recent groundbreaking decision by the Court of Justice of the European Union in connection with our 2019 Facebook case has greatly strengthened our approach to enforcing competition law. In 2019 we prohibited Facebook from combining user data from several sources without the users’ consent. The Court has now clarified that in order to determine whether a company abuses its market power, competition authorities can also look into its compliance with data protection rules. We can examine whether an internet company’s usage of the very personal data of consumers is to be deemed abusive under competition law.”

At European level, the Digital Markets Act (DMA), a new instrument for regulating large online platforms, has entered into force. The Bundeskartellamt cooperates closely with the competent enforcement authority, the European Commission. National provisions of competition law, especially Section 19a of the German Competition Act (GWB), remain applicable and are going to complement the DMA regulations.

Cartel prosecution

In 2022 the Bundeskartellamt imposed fines amounting to around 24 million euros on a total of 20 companies and seven individuals. The sectors concerned included expansion joints for bridges and the industrial construction sector. In the first half of 2023 fines totalling almost 200,000 euros were imposed in the road construction sector, and this amount is expected to increase even further.

Andreas Mundt: “The number of fines imposed in 2022 was lower than in previous years. This was mostly due to the pandemic, but we are now back to prosecuting cartels at full steam. In 2022 we carried out 18 dawn raids – the highest number in years. The first half of 2023 has been promising, too.” 

In 2022 the Bundeskartellamt carried out a total of 12 dawn raids and provided official assistance for another six. In the first half of 2023 it has so far carried out six dawn raids (two of which by way of official assistance). To put this in perspective, in 2021 it was only possible to carry out two dawn raids due to the pandemic.

Merger control

In 2022 the Bundeskartellamt examined around 800 merger projects. Eight of these mergers were closely examined in second phase proceedings. A merger in the surface drainage sector was prohibited. Two others, namely the acquisition of OMV petrol stations by the EG Group (Esso) and the strategic connection between Rheinenergie and Westenergie (E.ON), were only cleared subject to conditions. In two other cases, the participating companies gave up their project in the course of the examination.

In the current year 2023 the Bundeskartellamt has cleared the acquisition of parts of the dairy business of Friesland Campina by the Theo Müller Group only subject to conditions and initiated three other second phase proceedings (in German).

Andreas Mundt: “In concentrated markets it is easier for individual companies to assert their price setting power. Merger control is the only preventive tool available to us to limit market concentration. It also has a noticeable deterrence effect, so that some companies refrain from even notifying merger projects due to the expected obstacles posed by competition law. Considering this deterrence effect as well as the declining number of notifications, the current turnover thresholds appear appropriate. After the notification thresholds were raised in 2021, raising them even further would only be detrimental to effective merger control. 

Fuel prices

The Bundeskartellamt has further intensified its continuous monitoring of fuel prices at all petrol stations in Germany (around 15,000) by the Market Transparency Unit for Fuels. First results of the inquiry into the refinery and wholesale level were presented in autumn last year.

Andreas Mundt: “Our ongoing inquiry into refineries has delivered a first insight into what actually happens between the purchase of crude oil and the sale at petrol stations. We continue to see structural issues in the market, for example the fact that many companies are active across the entire value chain from the drilling hole to the petrol pump, and that market transparency is high also at the refinery and wholesale level. Based on these findings we will continue our inquiry into the companies’ pricing, costs and actual profit margins. Simultaneously, we will continuously monitor petrol station prices and ensure the greatest transparency possible for the benefit of consumers."

Energy price relief

Early this year the Bundeskartellamt took over abuse control relating to the energy price relief measures for electricity, gas and district heating. The laws’ prohibitions of abusive practices aim to prevent companies from charging end consumers prices which result in the companies obtaining unjustified relief payments from the state.

Andreas Mundt: “Abuse control relating to the energy price relief measures is a complex task. The state makes available enormous amounts of relief payments, and it is up to us to protect tax payers from being exploited in this process. We started our work right at the beginning of this year. So far, we have initiated three separate examination proceedings regarding gas, district heating and electricity.”

To implement the prohibitions of abusive practices, all data provided in the suppliers’ applications for relief payments are analysed. If based on the proceedings infringements are found to have occurred – especially if consumers were charged prices that are not objectively justified – reimbursement payments that have been unlawfully obtained must be repaid to the Federal Republic of Germany. The imposition of fines is also possible.

Competition Register for Public Procurement

The Competition Register for Public Procurement has been in full operation for over a year now. The fully electronic register provides all public contracting authorities, sector contracting entities and concession grantors 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 for Public Procurement is making a significant contribution to the efficient execution of procurement procedures and to ensuring fair competition for public contracts. Since the obligation for contracting entities to consult the Competition Register became applicable a year ago, the Register has been consulted over 255,000 times; in the past few months it has been consulted well over 1,000 times per day, on average.”

11th amendment to the German Competition Act

On 6 July 2023 the German Bundestag passed the 11th amendment to the German Competition Act (GWB). Among other things, this amendment is to strengthen sector inquiries, make the disgorgement of benefits more effective and improve the possibility of imposing an obligation to notify mergers below the merger control thresholds. Core element of the amendment are new powers for the Bundeskartellamt to, once determined, put an end to a significant malfunctioning of competition and, as a last resort, even divest companies outside the scope of remedies for abusive conduct. The Bundeskartellamt has published a statement on the amendment (German only).

Andreas Mundt: “The new competencies to intervene can help restore competition and innovation in encrusted markets or markets with concentrated power structures. As we apply the new provisions, we are entering uncharted territory, with many novel legal issues to be clarified. It is a very complex type of proceeding that offers the companies concerned comprehensive legal remedies and has very strict requirements of proof. Proceedings will be very time-consuming and probably span several years. We hope we will receive the resources necessary for this task.”

A draft for a 12th amendment to the German Competition Act has already been announced for the current legislative term and is expected to place particular focus on more consumer protection.

The “2022/23 Annual Report” (see below) provides an informative overview of the Bundeskartellamt’s activities from mid-2022 to May 2023.