Bundeskartellamt – Review of 2023

Bundeskartellamt – Review of 2023
Bonn, 21 December 2023: The Bundeskartellamt’s activities in 2023:
-proceedings against Amazon, Apple, Google, Meta/Facebook and Microsoft,
-fines amounting to approximately 2.8 million euros imposed for illegal cartelagreements,
-approximately 800 company mergers examined,
-over 100 applications for review in public procurement cases processed,
-approximately 5,500 entries into and 245,000 consultations of the CompetitionRegister for Public Procurement.

On the pulse of time
Andreas Mundt, President of the Bundeskartellamt: “Competition law enforcement has its finger on the pulse of time. We have looked into various projects of companies wishing to cooperate to withstand crises or pursue sustainability objectives. The energy sector has been a major focus of ours: we can look back on control of abusive practices in the context of energy price relief measures, cooperation projects with regard to LNG terminals and the development of a hydrogen network infrastructure, investigations into the fuel sector and electric vehicle charging stations, and the work of our market transparency units. In addition, we have recently initiated several abuse proceedings with regard to price increases in district heating.”

Cartel prosecution
In 2023 the Bundeskartellamt imposed fines amounting to approximately 2.8 million euros on a total of 8 companies and 5 individuals in the industrial construction
sector. Around 77.4 million euros in fines, including accrued interest, were collected from previously concluded proceedings. 14 companies informed the Bundeskartellamt about infringements in their sector by making use of the authority’s leniency programme. Many more tip-offs were received from other sources. Andreas Mundt: “The total amount of fines imposed is lower than in previous years. The repercussions of the pandemic, which had made it very difficult to prosecute cartels, can still be felt. But we are finally past the ‘Covid slump’. We have received a substantial number of new tip-offs from leniency applicants and other sources and carried out 11 dawn raids this year. Several major cases are ongoing and will be concluded soon. Our prosecution process remains effective because we are continuously refining our investigation techniques, including cutting-edge screening techniques. We have also received many valuable tip-offs through the external reporting unit established at the Bundeskartellamt under the Whistleblower Protection Act in the middle of this year. This instrument protects whistleblowers against disclosure of their identity and reprisals.”
The ban on cartels can also be enforced by means other than fines. In 2023 the Bundeskartellamt concluded an administrative proceeding against the Working Group of Associations of Suppliers of Medical Aids (“ARBEITSGEMEINSCHAFT VON HILFSMITTELVERBÄNDEN”, ARGE). The anti-competitive coordination of prices in the supply of medical aids by ARGE was ultimately terminated (press release of 6 November 2023). In the sector of mail consolidation services for letters the Bundeskartellamt initiated a proceeding against Deutsche Post InHaus Services, Postcon and Compador due to possible anti-competitive agreements (press release of 20 July 2023).

Digital economy
Andreas Mundt: “The digital economy remains a key focus of our work. Some proceedings relating to extended abuse control have already achieved tangible improvements, such as giving users of Google services or Meta’s VR headsets better control over their data. Many other proceedings against large digital companies are ongoing and in some cases well advanced.” As of this year a number of large online platforms have been subject to the Digital Markets Act (DMA) in Europe. The DMA is applied in parallel with competition law. The Bundeskartellamt will continue to cooperate closely with the European Commission. In 2023 the Bundeskartellamt initiated a proceeding under the rules of traditional abuse control against PayPal on account of practices possibly hindering competitors and restricting price competition (press release of 23 January 2023). In 2023 the
Bundeskartellamt also concluded a sector inquiry into non-search online advertising (press release of 31 May 2023) and a sector inquiry under consumer protection law into messenger and video services (press release of 17 May 2023).
In 2023 the Court of Justice of the European Union (CJEU) handed down a landmark decision in connection with the Bundeskartellamt’s 2019 Facebook case. The CJEU clarified that competition authorities can also look into a company’s compliance with data protection rules in order to determine whether it is abusing its market power (press release of 4 July 2023).

Abuse control proceedings in the railway, arms and other sectors
In the past year general abuse control focused on the regulated sectors of railway and the arms industry. In June 2023 the Bundeskartellamt directed Germany’s main national railway operator, Deutsche Bahn, to make traffic data available to third-party mobility platforms and change a number of other practices impeding competition (press release of 28 June 2023). Deutsche Bahn has appealed this decision to the Düsseldorf Higher Regional Court. An abuse proceeding against Rheinmetall safeguarded competition in the maintenance of “GTK Boxer” wheeled armoured transport vehicles (press release of 13 March 2023).

Abuse control relating to energy price relief measures
In exercising its control of abusive practices in the context of energy price relief measures the Bundeskartellamt has so far initiated examination proceedings against a total of 57 suppliers from the three energy sectors gas (23 proceedings), heat (17 proceedings) and electricity (17 proceedings). Based on all compensation payments applied for in the examination period, this is equivalent to approximately 15 per cent with regard to gas and heat, and approximately 20 per cent with regard to electricity sold to households and small companies (see press release of 13 December 2023).

Merger control
In 2023 the Bundeskartellamt examined around 800 merger projects. Seven of these mergers were closely examined in second phase proceedings. The Theo Müller Group was only cleared to take over parts of Royal Friesland Campina’s dairy business (in particular the “Landliebe” and “Tuffi” brands) subject to commitments made by the parties. A takeover in the waste management sector (Veolia/Friedrich Hofmann) was
also only cleared subject to conditions. Four of the merger projects examined in second phase proceedings were cleared. One merger project is still being examined.

Competition Register for Public Procurement
In 2023 around 5,500 economic offences were entered in the Competition Register. On average, the Competition Register is consulted 1,000 times per day by public contracting authorities via a web portal to help them assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences (in total, it has been consulted 390,000 times since it started full operation in June 2022). 27 companies have applied for premature deletion due to self-cleaning (16 applications were granted, 4 were withdrawn and 7 have not yet been decided on).

Amendment to the German Competition Act
On 7 November 2023 the 11th amendment to the German Competition Act (GESETZ GEGEN WETTBEWERBSBESCHRÄNKUNGEN – GWB) entered into force.
As a key element of the amendment the Bundeskartellamt’s competences have been expanded to enable the authority to impose remedies following a sector inquiry.
In addition, the Bundeskartellamt obtained new investigative powers to examine possible violations of the EU’s Digital Markets Act. The amendment also lowers the requirements for disgorging economic benefits that have resulted from competition law violations (“Disgorgement of Benefits”).
The Federal Ministry for Economic Affairs and Climate Action (BMWK) has announced a 12th amendment to the GWB. That amendment is to improve the Bundeskartellamt’s powers with regard to enforcing consumer protection law.