Germany

On December 9, 2021, following ex officio proceedings,[1] the German Cartel Office (“FCO”) concluded that the acquisition of customer relationship management software provider Kustomer, Inc., (“Kustomer”) by Facebook Inc., re-named Meta Platforms Inc. (“Meta”) since October 2021, is notifiable under the German merger control regime as it falls under the € 400 million transaction value threshold of the ARC[2] and asked Meta to submit documents to review the transaction.[3]  On January 11, 2022, the parties notified the transaction to the FCO.

In 2021, the German Federal Cartel Office (“FCO”) concluded three major proceedings on resale price maintenance and vertical price fixing.  It fined five musical instrument companies a total of € 21 million for resale price maintenance and horizontal price-fixing, a backpack maker € 2 million for setting minimum retail prices, and consumer electronics manufacturer € 7 million for resale price maintenance.  These cases illustrate that the FCO considers resale price maintenance a serious infringement for which it imposes significant fines.

In 2021, the German Federal Cartel Office (“FCO”) concluded a long-lasting proceeding into price fixing and information exchange in the stainless steel sector after it had already in early 2021 fined steel forgers € 35 million for information[1], while it unsuccessfully defended its decision relating to an alleged “Kölsch” beer cartel before the Düsseldorf Court of Appeal (“DCA”).  The FCO will find itself before the courts again soon as it has appealed the DCA’s “Kölsch” beer cartel judgment and two undertakings have appealed the FCO’s stainless steel cartel decision.

On November 4, 2021, the German Federal Cartel Office (“FCO”) published an interim report on its sector inquiry into messenger and video services,[1] exploring the necessity of interoperability rules for messaging services.  The interim report does not contain recommendations but reserved them for the final report expected to be released in 2022.

On October 11, 2021, the FCO published two new guidelines, the leniency guidelines and guidelines on the setting of antitrust fines.[1]  Both guidelines reflect revisions to the Act against Restraints of Competition (“ARC”) resulting from the 10th Amendment of the ARC earlier in 2021.[2]  While the leniency program was legally anchored only by the 10th Amendment of the ARC, the FCO’s new leniency guidelines largely correspond to the former guidelines as issued in 2000 and updated in 2006.  In contrast, the FCO’s new fining guidelines substantiate several important methodical changes introduced to the law by the 10th Amendment of the ARC and implement judicial practice which has in the past differed considerably from the FCO’s principles in some cases.

On September 1, 2021, the Monopolies Commission published its 8th Energy Sector Report focusing inter alia on competition for electric vehicle charging points.[1]  Just one month later, the German Federal Cartel Office (“FCO”) published its interim report on its sector inquiry into the charging infrastructure for electric vehicles.[2]

On July 29, 2021, the German Federal Cartel Office (“FCO”) published the results of its sector inquiry into mobile apps,[1] finding severe deficiencies regarding the information provided to app users and apps’ compliance with data protection law.  The FCO recommends app publishers and app store operators should increase transparency and requests increased private enforcement and more enforcement by data protection authorities.

On June 23, 2021, the German Federal Cartel Office (“FCO”) published its Annual Report 2020/2021[1] as well as its biennial Activity Report 2019/2020. Andreas Mundt, the President of the FCO, pointed out that the FCO’s enforcement activities continue to focus on the digital economy and consumer protection—especially with the help of the FCO’s new enforcement tools created by the recently introduced 10th Amendment of the German Act Against Restraints of Competition (“ARC”)[2]. The reports also provides various enforcement statistics that show that the FCO continues to be a highly active competition law enforcer in the EU.[3]