The President of the Bundeskartellamt, Andreas Mundt, has today presented the authority’s “Activity Report 2017/2018” and the “Annual report 2018”. The Activity Report is published every two years in fulfilment of the authority’s reporting duties to the German Bundestag. The report is submitted to the parliament for information and debate.

Focus on the digital economy and consumer protection

Andreas Mundt: “We have a clear digital agenda. When it comes to major online platforms, we pursue two main objectives: We want to keep markets open for competitors and prevent the abuse of dominant market positions to the detriment of consumers. Our decision against Facebook which aims to limit the company's collection of personal data is thus an element of our work that is fully in line with this agenda as it directly protects consumers. We are also taking care to ensure that competitors that do not have the same access to data as Facebook will be strengthened in future. In an effort to protect effective competition, we are going ahead with our proceedings against Amazon regarding its business terms for sellers on Amazon Market Place. We are working on a comprehensive paper on “Competition and algorithms” together with the French competition authority to gain a better understanding of digital markets and are also advancing with our sector inquiry on “online advertising”. Our three purely consumer-rights oriented sector inquiries into online comparison websites, smart TVs and user reviews on digital portals also clearly focus on the digital economy."

The Bundeskartellamt concluded proceedings against Facebook early in 2019, prohibiting the company’s continued collection and combination of data from different sources (cf. Bundeskartellamt press release of 7 February 2019). Facebook having appealed the decision, an initial decision by the Düsseldorf Higher Regional Court is expected later this year.

Following a large number of complaints, the Bundeskartellamt is conducting proceedings against Amazon to examine its terms of business and practices towards sellers on its German marketplace amazon.de. After the publication of their joint paper on big data in competition law, the Bundeskartellamt and its French sister authority, Autorité de la Concurrence, are working on another paper on the significance of algorithms in competition law. The Bundeskartellamt’s sector inquiry into online advertising is to facilitate a better understanding of digital advertising markets.

In the summer of 2017, the legislator granted the Bundeskartellamt initial competences in the area of consumer protection. The authority can initiate corresponding investigations. However, the Bundeskartellamt has not been granted any competences regarding the enforcement of the Act Against Unfair Competition (UWG) so far. Since the new competences have been granted to the authority, it has formed a new division that concluded a sector inquiry into the transparency and fairness of comparison websites and has initiated further sector inquiries into the processing of user data in smart TVs and online user reviews.

Andreas Mundt: “We have uncovered deficiencies of comparison websites that we cannot remedy. With ongoing further inquiries into smart TVs and user reviews, we think it would be in the consumer’s interest if the legislator took the next step and granted us some enforcement rights, in particular with regard to the digital economy.” 

Cartel prosecution

In 2018 the Bundeskartellamt imposed fines of around 376 million euros on 22 companies or trade associations and 20 individuals. The sectors concerned included special steel manufacturers, potato and onion packaging, newspaper publishers and rolled asphalt production. The authority received 25 leniency applications and numerous other indications of possible infringements of competition law. It carried out seven dawn raids at a total of 51 companies.

Andreas Mundt: “Cartel prosecution remains one of the Bundeskartellamt’s key tasks. In the course of 2019, we already concluded cartel proceedings for illegal vertical price-fixing agreements between magazine-lending services and bicycle wholesalers. Our investigations in some further cases are in the advanced stages. It is true that the total number of leniency applications has decreased over the last few years. However, they remain our key tool for uncovering complex cartels and clarifying the actual involvement of, in many cases, a large number of individual cartel members. All in all, especially major cartel cases have become similar to major economic offence proceedings, also due to the investigation requirements set by the courts. The complexity of the investigations has considerably increased over the last few years.”

Merger control

1,300 planned mergers were notified to the Bundeskartellamt in 2018. 13 of these cases were closely examined in the so-called second phase. Four projects were cleared, one of them subject to obligations. In four cases, the parties to the merger withdrew their notifications due to the Bundeskartellamt’s concerns expressed during the second phase proceedings. Five of these second phase proceedings were only concluded in the course of 2019.

In the first months of 2019 four merger notifications were withdrawn in response to the Bundeskartellamt’s preliminary competition law concerns (Total/Görgen, National Geographic/Gruner&Jahr, Ameos/Sana-Kliniken and IBM/T-Systems). In 2019 the Bundeskartellamt prohibited the acquisition of the folding machine manufacturer MBO by Heidelberger Druckmaschinen AG and the merger of the two plain bearing manufacturers Miba and Zollern.

Andreas Mundt: “Studies looking at the USA show a stronger tendency towards concentration. This trend has not been observed in Europe so far, even though some sectors are seeing effects of concentrations due to globalisation and the digital transformation. It is therefore important to have an effective merger control regime in place. The new EUR 400m transaction value threshold, which is aimed at the digital economy and enables the Bundeskartellamt to examine acquisitions of companies with low turnovers, has demonstrably worked in practice. We have not seen any cases which were problematic under aspects of antitrust law. All in all, the figures show that the Bundeskartellamt examines a very large number of merger cases, much more than other competition authorities. Within the framework of the upcoming amendment to the German Competition Act it would therefore make sense to reduce the number of cases and to focus on the cases that really matter to consumers. Merger control as a whole has become more complex. We apply state-of-the-art economic methods to carefully define markets and to assess the economic effects of each individual project. We collect data, look at internal company information, conduct surveys and obtain a comprehensive overview of the actual market situation, be it a regional, European or global market.

You will find the Activity Report 2017/2018 (in German) and the Annual Report 2018 (in German) on the website of the Bundeskartellamt.