On September 26, 2022, the Federal Ministry for Economic Affairs and Climate Action published a draft of the Competition Enforcement Act which will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time (“Draft 11th Amendment”).[1] The aim of the Draft 11th Amendment is to strengthen the Federal Cartel Office’s (“FCO”) enforcement powers beyond the existing enforcement of antitrust and abuse of dominance violations.
On April 20, 2022, the German Federal Cartel Office (“FCO”) issued a statement of objections against Deutsche Bahn AG (“DB”) taking the preliminary view that certain practices and contractual clauses of DB in relation to mobility platforms constitute an abuse of market power.
The German Federal Cartel Office (“FCO”) has endorsed a “one-time temporary cooperation project” of Germany-based sugar manufacturers Nordzucker, Südzucker, Pfeifer & Langen and Consun Beet to coordinate capacities for the processing of sugar beets from September 2022 to March 2023 in light of the dawning gas supply shortage.[1]
On September 20, 2022, Advocate General Rantos delivered his opinion on the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”)’s request for a preliminary ruling concerning the decision of the Bundeskartellamt (German Federal Cartel Office, “FCO”) which had found that Meta Platforms (“Meta”, formerly Facebook Inc.) abused its dominant position in relation to the collection, processing, aggregation and use of personal data of its users in 2019.[1] The Advocate General concluded that a competition authority may examine, as an incidental question, the compliance of the practices under investigation with the General Data Protection Regulation (“GDPR”) rules, while informing and, where appropriate, consulting the competent supervisory authority on the basis of the GDPR.[2]
On February 17, 2021, the German Federal Cartel Office (“FCO”) published its third report on market power in the electricity generation sector (“Market Power Report”), analyzing the competitive landscape from October 1, 2020 to September 30, 2021.[1] Again, the FCO published its results one year earlier than statutorily required because of the continuing phase-out of nuclear and coal energy.
On February 11, 2022, the German Federal Cartel Office (“FCO”) approved the acquisition of OMV Retail Deutschland GmbH’s (“OMV”) filling station network by the British convenience retailer EG Group Limited (“EG Group”). The FCO’s approval is subject to the prior divestiture of 25 EG Group filling stations and 23 OMV filling stations in southern Germany.[1]
On February 8, 2022, the German Federal Cartel Office (“FCO”) preliminarily found that Deutsche Lufthansa AG (“Lufthansa”) has to provide feeder flights for Condor Flugdienst GmbH’s (“Condor”) long-haul flights.[1] The FCO invited the parties to comment on its preliminary findings before issuing its decision.
On February 3, 2022, the German Federal Cartel Office (“FCO”) declared that it will not—at this stage—launch an investigation in the area of Domain Name System (“DNS”) services.[1] Following indications from market participants, the FCO conducted a preliminary investigation lasting several months, but found that the suspicion of anticompetitive conduct in this field has not been substantiated.
On January 18, 2022, the German Federal Cartel Office published a press release of its review of two sustainability initiatives. Only a week later, on January 25, 2022, the FCO provided further guidance for the implementation of sustainability initiatives under competition law: It concluded that a proposed agreement in the milk sector to introduce surcharges for the benefit of milk producers was anticompetitive.
With the examination of two sustainability cooperations concerning living wages in the banana sector as well as the expansion of an animal welfare initiative, the German Federal Cartel Office (“FCO”) provided further guidance for the implementation of sustainability initiatives in the food retail industry.