On December 22, 2021, the German Federal Cartel Office (“FCO”) published its annual review for 2021. As done already on the occasion of the presentation of its Annual Report 2020/2021, the FCO’s President, Andreas Mundt, emphasized again that the protection of competition in the digital economy remains one of the FCO’s top priorities. He underlined that also merger control will continue to serve as a key tool to achieve this goal. In addition, he pointed out that the FCO would welcome powers of intervention also with regard to infringements of consumer rights.
Digital Economy And Consumer Protection
Ensuring open markets by investigating large digital players and their practices was at the top of the FCO’s agenda in 2021. Accordingly, the FCO opened investigations against all major digital players under the new competition rules for companies with paramount cross-market significance (“PCMS”) in the first half of 2021. On December 30, 2021, the FCO issued its first PCMS decision.
Also in the area of consumer protection, the FCO’s focus in 2021 was on the digital economy (as it was already in 2019 and 2020). In this vein, in January 2021, the FCO joined forces with the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik, “BSI”). The FCO and Germany’s cyber security authority BSI entered into a cooperation to pool respective competences and expertise for the benefit of consumers. Apart from the continuous exchange of information, the cooperation also envisages mutual assistance in the authorities’ respective tasks relating to consumer protection.
Accordingly, the BSI assisted the FCO in one of two ongoing sector inquiries in the digital economy which the FCO had launched back in 2020, namely into messenger and video services. The other sector inquiry focused on mobile apps. The FCO published interim reports in July and November 2021, respectively.
While in 2017, the FCO received powers to investigate consumer protection infringements via the launch of sector inquiries, it lacks the competence to enforce consumer protection law, e.g., by issuing prohibition decisions or imposing fines. To date, the sector inquiries’ results only may facilitate private enforcement by consumers, consumer associations or competitors. The FCO is thus still seeking new enforcement powers in this respect.
Cartel Prosecution And Other Anticompetitive Agreements
In 2021, the FCO imposed fines of approx. € 105 million on a total of 11 companies and eight individuals, but the FCO’s prosecution activities were still restricted by the COVID-19 pandemic. In particular, the FCO carried out only two dawn raids, which are a key component to investigate cartel infringements and to collect evidence. The total amount of fines imposed for horizontal and vertical infringements was less than one third of the fines imposed for horizontal infringements only in 2020 (approx. € 349.4 million).
In terms of horizontal infringements, the FCO concluded proceedings against steel forgers (information exchange) and stainless steel producers (price fixing and information exchange). In addition, the FCO sanctioned vertical price fixing agreements (i.e., resale price maintenance) for musical instruments, school bags and consumer electronics. Nine companies applied for leniency and cooperated with the FCO, but the FCO also received additional tips from other sources.
Apart from its prosecution activities, the FCO revised its leniency and fining guidelines, in particular to better align them with the regulatory changes brought about by the 10th Amendment of the Act against Restraints of Competition.
In 2021, the FCO reviewed around 1,000 merger notifications. This is another decrease compared to 2020 (1,236 merger notifications) which should largely relate to the COVID-19 pandemic rather than the increase in the relevant turnover thresholds for merger filings under the 10th Amendment to the ARC.
While the FCO cleared most of the notified transactions in Phase I (i.e., within one month), it carried out 14 in-depth reviews (Phase II). Of these 14 Phase II reviews, the FCO cleared three unconditionally and one subject to conditions (remedies). The FCO prohibited one transaction. In five other cases, the parties withdrew their notifications during the in-depth investigation.
Interestingly, in the Meta/Kustomer case, the FCO initiated ex officio investigations and reviewed the merger in parallel to the European Commission. While the European Commission cleared the transaction subject to conditions, the FCO just recently cleared the transaction unconditionally.
Competition Register For Public Procurement
In March 2021, the FCO launched its digital Competition Register for Public Procurement (“CR”). The CR is a tool to record companies that have committed economic offenses and are therefore to be excluded from public procurement. In October 2021, the FCO announced that remaining requirements for electronic data transmission are now in place. The legal obligation of relevant authorities to submit the data to the CR became effective on December 1, 2021 and contracting authorities which had already registered can since consult the CR. However, legal obligations for public contracting authorities to consult the CR in relation to public procurement procedures involving projects exceeding certain contract values will only be effective as of June 2022.
Following public consultations on its draft guidelines and practical guide on the premature deletion of an entry in the CR, the FCO published in November 2021 its final guidelines and practical guide. According to these documents, premature deletion requires in particular that the company concerned actively cooperates with the relevant legal enforcement agencies, compensates any damages caused by the infringement, and implements compliance measures (e.g., technical, organizational and personnel measures) to prevent further misconduct to the extent these are not yet in place.
Editor: Katharina Apel
 Case B7-61/21, FCO decision of December 30, 2021; the FCO’s Press Release of January 5, 2022 is available in English here; a case summary is available in English here; the decision is only available in German here.
 For more details, please see our article on our Cleary Antitrust Watch blog (“Developments In 2021 In Relation To Horizontal Agreements”).
 For more details, please see our article on our Cleary Antitrust Watch blog (“The FCO’s Enforcement Actions In 2021 In Relation To Resale Price Maintenance”).
 For more details, please see our article on our Cleary Antitrust Watch blog (“The FCO’s New Guidelines On Leniency And Antitrust Fines”).
 Andros/Spreewaldhof (B2-23/21), FCO decision of June 24, 2021, a press release is available in English here, the decision is only available in German here; Rethmann/TSR Recycling/Willi Hennies Recycling (B5-168/20), FCO decision of June 28, 2021; Südbayerisches Portland-Zementwerk Gebr. Wiesböck/Ganser Baustoffe (B1-40/21), FCO decision of August 23, 2021.
 Magtech Europe/New Lachaussée (B5-160/20), withdrawal on January 27, 2021; OSR/Max Aicher Recycling/Hohenloher Recycling (B5-39/21), withdrawal on April 22, 2021; Dana/Modine Manufacturing (B4-144/20), withdrawal on June 9, 2021; Dana/Modine Manufacturing (B4-72/21), withdrawal on October 25, 2021, the FCO’s Case Summary is only available in German here; TSR Recycling/Rhein-Main Rohstoffe (B5-31/21), withdrawal on December 8, 2021, the FCO’s Press Release of December 14, 2021 is only available in German here .
 For more details, please see our article in this newsletter below (“No “One-Stop-Shop”: FCO Reviews Digital Merger In Parallel To The Commission”). The FCO’s Press Release of February 11, 2022 is only available in German here.
 Such requirements are a prerequisite for the relevant authorities’ obligation to communicate data to the CR and the public contracting authorities’ obligation to consult the CR Authorities required to transmit data to the CR include in particular the public prosecution offices and authorities competent for the prosecution of administrative offences.
 See the FCO’s Press Release of November 25, 2021, available in English here; the Guidelines on the premature deletion of an entry in the CR due to self-cleaning are only available in German here; the Practical Guide on filing an application is only available in German here.