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Bundeskartellamt maintains findings of oligopoly in the mineral oil sector OMV petrol stations sold to a third party outside of the oligopoly - Shell has to scale down takeover plans

Date of issue: 06.12.2010

The Bundeskartellamt maintains its assessment that the vertically integrated mineral oil companies Shell, BP (Aral), ExxonMobil (Esso), ConocoPhilipps (Jet) and Total form a dominant oligopoly in regional petrol station markets in Germany.

The President of the Bundeskartellamt, Andreas Mundt, stated: "Takeovers and additional acquisitions of third petrol stations are only possible to a very limited extent to prevent further concentration of the market."

The Düsseldorf Higher Regional Court recently rejected this assessment and ruled that the "conditions of competition between them allow for substantial competition and they do not hold any paramount market position in relation to the other competitors." With this ruling the court reversed the Bundeskartellamt's decision to prohibit plans by Total to acquire 59 East German petrol stations owned by the Austrian company OMV (cf. Bundeskartellamt press release of 29 April 2009). A final decision in the matter is still to be taken by the Federal Court of Justice.

The view taken by the Düsseldorf Higher Regional Court is not confirmed by the Bundeskartellamt's findings, also in respect of the ongoing sector inquiry in the fuel sector. In addition, it contradicts the numerous comments which the authority receives daily from medium-sized petrol station operators and the general public.

It remains to be seen whether the Federal Court of Justice will decide in the matter because the OMV petrol stations have meanwhile been sold to ORLEN Deutschland which is part of the Polish group ORLEN. The Bundeskartellamt has already cleared this transaction and expects it to increase external competition in the East German regional markets concerned.

Takeover of Edeka petrol stations by Shell only cleared after modifications
The Shell Group has also had to considerably modify its original takeover plans in order to avoid the impending prohibition of its overall project.

Concerns expressed in particular by the medium-sized mineral oil companies about the 19 EDEKA petrol stations could largely be dispelled on account of the solution which has now been found. Considerably fewer petrol stations in terms of the volume of fuel sold will now be acquired than originally envisaged in the two regional markets of Bielefeld and Herford, where the conditions of competition have been identified as problematic. The project could be cleared in this reduced form.

Results of the Fuel Sector Inquiry at the end of January 2011
The fuel sector inquiry will be concluded shortly. Whereas the main purpose of the Interim Report of June 2009 was to assess structures in the fuel sector and to establish the existence of an oligopoly, investigations since then have focused on examining price gaps to the detriment of medium-sized petrol station operators, the relevance of so-called agency or even brand partnership agreements under competition law, competition problems arising from fuel and service cards and the competition situation at motorway petrol stations. In addition, very elaborate quantitative examination methods will be applied to examine prices at petrol stations in the four regional markets of Hamburg, Cologne, Munich and Leipzig to obtain, for the first time, valid information as to what extent specific price-setting patterns are used. The results of the inquiry will be published in the form of a report, presumably at the end of January.

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