Germany: economist perspective
On 19 January 2021, the 10th amendment of the German Act against Restraints of Competition (ARC) entered into force. The latest amendment extended the enforcement power of the Bundeskartellamt, Germany’s highly regarded national competition authority (the German Competition Authority), with respect to digital platforms substantially. Immediately after its implementation, proceedings were opened against the leading online platforms: Google, Amazon, Facebook and Apple. In addition to the change in law, enforcement activity in digital markets remained high in Germany. In this article we summarise some of the landmark court judgments – ranging from Facebook to Booking.com – as well as some of the most recent merger decisions (Salesforce/Slack; Allianz/ControlExpert) in digital markets.
From an economic perspective, local catchment area analysis has become a standard and has been the focus of several merger cases – ranging from retail groceries (sell-off of the REAL supermarkets) and discount furniture stores (XXXLutz/Tessner) to hospital mergers (Charité/DHZB). Besides improvements in local catchment area analyses, the resilience of the significant impediment to effective competition (SIEC) test and of the efficiency defence in merger proceedings have been tested in some of those cases as well.
Regarding cartel enforcement, in 2020 fines totalling €349 million were imposed. This is in line with the long-term average fine amount in previous years. It is, though, below record levels seen in past years and may potentially be accompanied by a further decline in 2021/2022 due to the covid-19 induced low number of dawn raids. Regarding private enforcement, Germany continues to be one of the preferred jurisdictions for private litigation cases within Europe, leading to complex empirical work by economists in the quantification of damages.
The article ends with a brief overview of institutional changes at the German Competition Authority and an outlook.
The 10th amendment of the German Act against Restraints of Competition
With its 10th amendment of the ARC, the German legislator has significantly broadened its grip on digital platforms. The following aspects in particular are worth noting.
First, data and data access has become an explicit and important factor of the ARC. It is now explicitly mentioned as a criterion when assessing dominance of a company (§18.3); not granting access to data is considered an abuse, covered by an essential facility doctrine; it is a central part of the finding and prohibits abuses of companies holding a paramount significance for competition (PSC) across markets (§19a; see below); and it is considered a potential source of relative economic dependency (§20.1a).
Second, intermediary market power is a ‘new’ terminology introduced into the law (§18.3b), which is inspired by economic literature on multi-sided markets (MSMs). Intermediary market power is now considered an additional source of market power, resting on the gatekeeper role of platforms acting in MSMs.
Third, companies can be found to hold PSC across markets. This provision is specifically designed for the GAFA(M) firms and attempts to address their incentives to build broader ecosystems around their core markets. If a company is found to hold a position of PSC, strategies of self-preferencing, tying and bundling, and limiting interoperability and data portability are prohibited.
Forth, the concepts of relative and superior market power are strengthened. Both concepts allow competition law enforcement in bilateral constellations where the powerful firm holds a position below single dominance. Those concepts have a long tradition in German competition law. With the latest reform, the concept of superior market power – which focuses on horizontal rivalry – is sharpened to protect competitors of large digital platforms: any impediment by the incumbent platform against a smaller competitor (eg, an entrant offering substitutable platform services, to attain positive network effects) is prohibited. This provides protection for smaller platforms in markets where the leading platform is not dominant. The notion of relative dependency, which focuses on the vertical relationship, is under this reform extended to large companies (before the reform it was limited to SMEs). This allows, for instance, a branded manufacturer who is exposed to a large online platform to enforce its listing on that platform or to rebut requests for excessive provision payments.
Last but not least, the reform cuts short the appeal instances available to parties being affected by those reforms. Any appeal of an affected party against a decision of the national competition authority has to be brought directly to the Federal Court of Justice and not, as before, first to a specialised competition chamber. This change in law will substantially reduce the time period between a judgment by the Competition Authority and the point in time when it becomes final.
The most recent amendment builds on the preceding reform of the ARC. Already the 9th amendment spelled out criteria for finding dominance in MSMs, for example, by introducing the notion of direct and indirect network effects, and stated that a market can also exist if the product or service is given away for free – a property common to MSMs. The 9th amendment was, however, more about clarification than about true change. It made an already existing enforcement practice explicit. The 10th amendment, in contrast, substantially extended the enforcement power of the German Competition Authority. With the latest reform the German Act against Restraints of Competition has become one of the first national enforcement systems that addresses the problem of tipping and envelopment strategies in a comprehensive way, that is, allowing effective government interventions before a firm has become dominant in the market.
In addition to provisions related to digital markets, the 10th amendment also brought several other important changes to the law. It increased the thresholds for merger notifications substantially and, at the same time, the reform granted the German Competition Authority the right – under specific provisions – to review mergers below those thresholds. While the first change will substantially reduce the workload of the German Competition Authority and the administrative burden of many firms, the later provision allows the agency to limit the room for sequential takeovers of smaller firms by a large incumbent in markets with non-effective competition. Finally, the reform also brought the German Act against Restraints of Competition in line with the ECN+-Directive.
The never-ending Facebook saga, the beginning of PSC proceedings against leading digital platforms and some definite answers by the court
In February 2019, the German Competition Authority delivered its final legal assessment on the Facebook abuse case, considering Facebook to be dominant on the German market for social networks for private users, with a market share of 95 per cent of daily active users. The authority held the view that Facebook is abusing this dominant position by making the use of its social network conditional on it being allowed to limitlessly amass every kind of data generated by using third-party websites and merge it with the user’s Facebook account. These third-party sites include, first, services owned by Facebook such as WhatsApp or Instagram and, second, websites and apps of other operators with embedded Facebook application programming interfaces. This behaviour of Facebook is, according to the assessment of the FCO, in violation of the General Data Protection Regulation and is considered to be an exploitative abuse based on section 19, paragraph 1 of the German Competition Act.
In a judgment from August 2019, the Higher Regional Court of Düsseldorf sided with Facebook, though, and suspended the decision of the FCO, expressing doubts that the conduct infringed competition rules. Based on an appeal by the German Competition Authority, a decision by the Federal Court of Justice of June 2020 annulled this decision of the Higher Regional Court and rejected the request to order the suspensive effect of the appeal. The Federal Court of Justice rather sided with the FCO and even went beyond the position held by the FCO: independent of whether there is a violation of the General Data Protection Regulation, the lack of options for users to choose the degree of privacy exploits users in a manner that is relevant under competition law since – due to Facebook’s dominant position – competition is no longer able to effectively exercise its controlling function. Based on the FCO’s findings, a considerable number of private Facebook users wish to disclose less personal data. If competition on the market for social networks were effective, argues the Federal Court of Justice, this option could be expected to be available. In this decision, the highest German court loosened the causal link between market power and abusive conduct. It is now sufficient that market power is reflected in the anticompetitive outcome of the abusive behaviour and not linked to the anticompetitive behaviour itself.
Despite the apparent victory of the German Competition Authority in this case, a decision by the Higher Regional Court on the substantial part of the case is still outstanding (the earlier row was on suspension of the decision). However, the Higher Regional Court did not see itself – despite the judgment by the Federal Court of Justice – in a position to come to a final judgment without getting an answer on the application of EU data protection law to the case. Accordingly, the case was referred to the Court of Justice of the European Union in March 2021.
In addition to these proceedings, a new case was brought against Facebook at the end of 2020 regarding the tying of virtual reality products, branded under the name Oculus, into the Facebook ecosystem. Within this context the German Competition Authority will also assess whether Facebook holds a position of PSC across markets. While the outcome of this proceeding is still outstanding a positive finding thereof is rather likely given the German Competition Authority’s earlier finding of a dominant position of Facebook in the market for social networks.
The enforcement activity in digital markets does not stop with Facebook though
The original proceedings against Amazon came to an end in July 2019 after Amazon agreed to change its general terms and conditions and to strengthen the rights of third-party suppliers on Amazon’s open marketplace in relation to liability, cancellation rights and mandatory publication rights of product descriptions. In the meantime, the German Competition Authority opened two new proceedings though: in the first proceeding the authority is examining to what extent Amazon is influencing the pricing of sellers on Amazon Marketplace by means of price control mechanisms and algorithms. In the second proceeding, it is examining to what extent agreements between Amazon and brand manufacturers, including Apple, that exclude third-party sellers from selling brand products on Amazon Marketplace constitute a violation of competition rules. The competition authority is also assessing whether Amazon holds a PSC across markets.
PSC cases have also been initiated against Apple and Google. For Google the assessment also comprises the allegation of limiting users’ rights to decide on how their data is used – a concern consistent with the concern expressed by the Federal Court of Justice in the Facebook matter. The authority also announced its investigation into Googles News Showcase, a Google service that offers the possibility to present news content from publishers in a prominent and more detailed way. The concern here is, after integration of this service into its general search results, self-preferencing and an impediment to third-party services. The German Competition Authority is also examining whether the relevant contractual conditions include unreasonable conditions to the detriment of the participating publishers.
Already in 2019, the German Competition Authority applied some insights from its working paper on digital platforms in a ticketing industry case (CTS Eventim/FKP Scorpio). A ticketing platform serves event organisers on the one hand and ticket agencies on the other. Despite high market shares, the merger was cleared. More recently, the subsequent takeover of Four Artists events agency by CTS Eventim was prohibited. And, in parallel, an abuse of dominance case was concluded, prohibiting the exclusivity provisions of CTS Eventim, the leading ticketing system in Germany, with various parties. While the prohibition was confirmed by the Higher Regional Court in 2019, in 2020 the Federal Court of Justice dismissed the company’s appeal of the lower court’s refusal to allow an appeal. Specifically, it rejected the parties’ claim that an ‘as-efficient-competitor test’ is an appropriate methodology to rebut competition concerns due to exclusivity agreements; according to the court the relevance of the test is limited to rebates, not to exclusive contracts.
Last but not least, the Booking.com case – originally decided by the German Competition Authority in 2015 – finally became legally binding, marking one of the most intensively fought antitrust cases by the Authority. Several testimonies by leading economists had to be rebutted and additional analysis was requested by the appeals court from the German Competition Authority, including customer surveys. With the final judgment by the Federal Court of Justice, the decision became final: best price clauses implemented by online platforms are considered anticompetitive, not only in their broad but also in their narrow interpretation. Free-rider effects, which could potentially justify in particular narrower clauses despite the potential competition-hampering effects, were not considered significant by the Authority for the cases under review – a view that the Federal Court of Justice sided with in its judgment from May 2021.
Recent merger cases – digital markets
While being heavy-handed on dominance and abusive behaviour in digital markets, the German Competition Authority seems to be leaning towards a more light-handed approach in the merger arena as far as special-interest platforms are concerned: after the clearance decision of the merger between Immonet and Immowelt in spring 2015, the second- and third-largest real estate portals in Germany, the German Competition Authority also cleared, in second-phase proceedings, the merger of the two leading online dating platforms Elitepartner and Parship – a merger that could be considered a 2 to 1 merger under a more narrow market definition. This decision was based, inter alia, on the relevance of new customer acquisition in this industry and new entrants in the mobile segments. Also, the most recent concentration (July 2020) was approved in the German dating platform market where the mother company of Elitepartner and Parship took over another dating platform in Germany, Lovoo: the ongoing dynamics with new platforms entering, mobile platforms thriving and customer multi-homing extensively enabled the positive decision.
Despite the in-depth assessment by the US agencies, the German Competition Authority cleared the acquisition of Slack Technologies Inc. (Slack) by salesforce.com, inc. (Salesforce) in the first phase of merger control. Slack provides team collaboration products while Salesforce offers one of the globally leading customer relationship management (CRM) software products. Given the rather weak position of Salesforce in Germany and the minor customer overlaps of the two products, the Authority did not find a potential to leverage the market power between the two segments. There was also a commitment of both parties towards an open software architecture and that a stand-alone version of Slack would be made available post-merger. Together with the dynamic overall environment in the broader market segment of business communication software and collaboration tools software, with established players such as Microsoft Teams and Facebook Workplace, the German Competition Authority did not see a reason to intervene – a decision which was followed by the US authorities (and other national competition authorities) in summer 2021, finally.
Another merger case in the digital field was the takeover of ControlExpert Holding B.V. Amsterdam by Allianz Strategic Invests S.a.r.l. Allianz is one of the leading insurers of passenger cars in Germany. ControlExpert offers IT-based support service, including AI-based services, for damages clearance and is Germany’s largest provider. The concern here was a raising rivals’ cost strategy. Namely, Allianz could increase post-merger the price or decrease the quality of ControlExpert’s services vis-à-vis competing insurance companies. This would increase the costs for damages clearance for Allianz’s competitors and, hence, may have softened competition in the insurance market. The databases on which the AI routines were run were provided by third parties and, hence, accessible also for ControlExpert’s competitors. Furthermore, the Authority found that alternative providers offered comparably efficient damages clearance services as ControlExpert. As a result, the merger was approved.
The agency also had no objections to the first stage of the implementation of Deutsche Kreditwirtschaft’s (German Banking Industry Committee) ‘Xpay’ or ‘#DK’ project to set up a uniform payment system for all payment channels. In a first step the current e-commerce payment methods paydirekt and giropay as well as the customer-to-customer payment system Kwitt are to be merged into a joint payment brand. This initiative is an attempt to challenge the leading e-commerce payment platforms in an environment of exploding online sales.
While those merger cases point towards a light-handed treatment of digital mergers, the latest statement – jointly made with the UK and Australian competition authorities – points toward a different direction in the future: strict enforcement and structural remedies are to be considered key in a fast-developing digital world.
Recent merger cases – local markets
Besides mergers in the digital segment, several mergers affecting local markets kept the German Competition Authority and its Chief Economist team busy.
With the sale of Metro’s 276 REAL supermarkets the, potentially, last ‘big’ concentration in the German retail grocery market took place. In addition to customer surveys, the agency relied on payback data. Payback, a leading consumer bonus program in Germany, collects customer-specific purchase data. Based on that data (anonymised), the authority was able to identify the area in which 90 per cent of all customers of the respective REAL store were resident. This area was considered the relevant geographic market of the REAL store concerned. Particularly in-depth analyses were carried out in the so-called key area in which two-thirds of all customers were resident. In addition, the downstream market power and buyer power were considered. As a result, besides some store closures, the REAL stores were sold via an investor to three different parties: Kaufland, Globus and EDEKA.
Local catchment area analyses were also carried out – some more in-depth than others – for merger assessments in relation to gasoline stations (EG Group/OMV), car class (Carglass ATU), hospitals, cinemas (CinemaxX/Cinestar), furniture retail, among others.
Two elements are worth highlighting in addition to local market analysis: in the merger case XXXLutz/Tessner Group, the German Competition Authority analysed the German furniture retail markets. With its brands POCO, Mömax and Osca/Sparkauf, XXXLutz is the second largest furniture retailer in Germany, after Ikea. The Tessner group with its leading brands Roller and tejo’s SB Lagerkauf is considered the fourth-largest retailer. Besides an in-depth catchment area analysis, this merger is interesting as the agency delineated a broad product market, namely the retail market for ‘articles of a basic furniture assortment’. Accordingly, the merging parties did not exhibit specifically high market shares in this broader relevant product market, justifying the finding of single dominance post-merger. Within this broad market the parties were, however, considered to be particularly close competitors in the discount segment. Focusing on this specific segment, the parties had overarching high market shares. In sum, this case was run by the agency as an SIEC case, not as a case of single dominance. While the case was cleared with remedies in Phase II the parties contested the decision at the appeal court and it will be interesting to see whether the court accepts a condition clearance based on SIEC only.
The other interesting case is the merger between Charité and Deutsches Herzzentrum Berlin (German Heart Center Berlin, DHZB) in the hospital segment.,  The already cooperating institutes wanted to merge their cardiosurgical and cardiological services. While in a broader relevant market, the full-range market for acute inpatient hospital services, market shares were rather small, the merger resulted in a considerable market share addition of 70–75 per cent in terms of cases and turnover (DHZB: 50–60 per cent, Charité 10–20 per cent) on a specialised market for heart surgery treatments in Berlin and the surrounding region. The merger was finally cleared due to the already existing strong links between the entities pre-merger and the rather low market shares in the broader defined market.
The case is interesting, though, as it provides a careful assessment of efficiencies. One efficiency brought forward by the parties was the better access to experts post-merger. According to the parties concerned, the merger primarily serves to facilitate and improve research and teaching, and hence to promote advancement in medicine. However, the efficiency argument was not sufficiently specific and adequately substantiated with facts with the result that it did not meet the requirements of verifiability. The parties also considered the increase in case numbers and the resulting possibility of the sub-specialisation of medical staff as a further efficiency gain created by the merger. In this respect the parties could soundly prove, based on scientific studies, that there is a positive relation between the number of cases and the quality of treatment in terms of reduced fatality and a lower rate of complications (so-called volume-outcome-relation) in numerous heart surgery treatments. As both the Charité and the DHZB nearly always reach the minimum number of cases for each of the relevant types of surgery examined in the studies, it was difficult for the parties to prove that merger-specific efficiencies were achieved with higher case numbers. Finally, efficiency gains of the merger could possibly be created by the planned construction of a new building including a new helicopter landing place. In this respect the parties could convincingly demonstrate that transportation time after arrival at the helicopter pad will be reduced and fewer transfers on campus will be necessary in future. Only the last efficiency – according to the case summary – met the requirements of an efficiency which is verifiable, merger-specific and partly passed on to the customers.
Administrative procedures have led to fines totalling over €208 million in 2015, €125 million in 2016 and €66 million in 2017. This is a significant reduction compared to the record fine level in 2014 of over €1 billion, bringing it back to the levels of earlier years.
In 2018, this declining trend in administrative fines came to a halt: the German Competition Authority imposed fines totalling approximately €205 million on six special steel companies, a trade association and 10 individuals for concluding price-fixing agreements and exchanging competitively sensitive information, bringing the total fine in 2018 to the second-highest level over the past 10 years to €376 million.
In 2019, the German Competition Authority imposed fines in cartel proceedings totalling approximately €848 million. In 2019, steel manufacturers again received the largest fine. They had to pay approximately €646 million for agreeing on prices of quarto plates.
In 2020, fines of €349 million were imposed. The largest fines were imposed on five aluminium forging companies, where the German Competition Authority imposed fines totalling approximately €175 million. The second-highest fine was imposed on seven wholesalers of plant protection products and their responsible employees for agreeing on price lists, discounts and some individual sales prices to retailers and end customers in Germany. Total fines amounted to €154.6 million.
Regarding private enforcement, Germany continues to be one of the preferred jurisdictions for private litigation cases within Europe, leading to complex empirical work by economists in the quantification of damages. With 120 companies applying for access to the decision division’s files, the Sugar cartel case has become one of the most intensively litigated private damages cases in Germany. Equally, the Truck cartel case has come under broad litigation. A wave of cases has also been triggered by the liquidators of the victims, which went bankrupt in the meantime: the liquidator of Schlecker, a drugstore that went bankrupt in 2012, is claiming total damages of more than €300 million from its suppliers. However, a recent judgment, dismissing the claim owing to insufficiently specified foreign turnover and elapsed limitation periods, brought this action to a temporary hold. Another judgment by the Higher Regional Court in Frankfurt dismissed the claim on substance. The judgment, potentially, will have a knock-on effect on parallel litigation on the same matter, putting the multimillion-euro claim under risk of complete loss.
With settlements between DB AG and Lufthansa AG in a multibillion-euro claim pending at German courts in the Air Cargo cartel case and a new multimillion-euro claim brought by Idealo against Google in the Google Shopping case, Germany has cemented its position in Europe as a central litigation hub.
Institutional development and outlook
While scope and depth of economic analysis is still behind DG COMP’s level on most accounts, the FCO’s Chief Economist team, headed by Arno Rasek and equipped with a team of around 10 economists has been involved in all Phase II merger cases and all other important competition cases, except cartels. The Chief Economist team is also heavily involved in the sector inquiries, the most recent one analysing the waste collecting industry. The involvement of external economists, however, has fallen back – after a record year in 2019 with more than 11 economic testimonies submitted by external consultancies in merger proceedings alone – to a substantially lower level in recent years. Besides its internal resources the BKartA also actively maintains its exchange with the legal academic community (Arbeitskreis Kartellrecht) and the economic academic community (Arbeitskreis Wettwerbsökonomie).
More in general, the German Competition Authority has extended its responsibilities substantially in recent years: after the addition of the Market Transparency Unit for Fuels (established in 2013) and the consumer protection unit (established in 2017), the Competition Register for Public Procurement will become active in 2021. The Competition Register for Public Procurement provides public contracting authorities, sector contracting entities and concession grantors with information enabling them to assess whether a company must or can be excluded from an award procedure in Germany for having committed economic offences.
Looking ahead, busy times are guaranteed for the German Competition Authority. While the increased merger thresholds may free some resources, with the 10th amendment and the initiating of proceedings against the GAFA platforms a long-lasting battlefield was established. The newly built Competition Register for Public Procurement, a backlog in cartel enforcement due to covid-19 and a broad portfolio of sector inquiries will fill up the remaining space on the office desk of Andreas Mundt, the authority’s long-runnning president. Based on its strong reputation, supported by a network of national and international competition authorities, and guided by its political independence, it will master this challenge eloquently, though, and will offer a vision for the global antitrust community.
 A non-official, consolidated version can be found at https://www.d-kart.de/wp-content/uploads/2021/01/GWB-2021-konsolidierte-Vorschriften.pdf (in German); https://www.d-kart.de/wp-content/uploads/2020/02/GWB10-Engl-Translation-2020-02-21.pdf (in English; both accessed on 13 September 2021).
 The SIEC test captures so-called ‘gap cases’. Gap cases are cases that are not brought under the notion of single or joint dominance.
 Friederiszick, H W and A Walckiers (2021): The economics of dependence: a theory of relativity. ESMT Working Paper.
 For an assessment of the economic principles behind tipping see Bedre-Defolie, Ö, and R Nitsche (2020), ‘When do markets tip? An overview and some insights for policy,’ Journal of European Competition Law and Practice, 11(10): 610–622.
 For a critical review of this literature and its limitations see Langus, G and V Lipatov (2021): Does Envelopment through Data Advantage Call for New Regulation? CES Ifo Working Papers, 8932.
 KVR 69/19.
 Under the narrow interpretation, hotels are not allowed to offer rooms at lower prices on their own website or via offline channels.
 KVR 54/20.
 Joint statement on merger control enforcement by Competition and Markets Authority (CMA), Australian Competition and Consumer Commission (ACCC) and Bundeskartellamt from 20 April 2021. https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Stellungnahmen_Opinion/Joint_Statement_CMA_ACC_Bundeskartellamt.html.
 This case is only one of many – hospital mergers have been at the centre of the authority’s activity for many years. A comprehensive overview of this sector’s competition problems is provided in the final report of the agency’s sector inquiry into this sector published in 2021: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2021/02_09_2021_SU_Krankenhaus.html?nn=3599398.
 In the latest meeting of the economic working group (fifth meeting of the group in spring 2021) – discussing competition in broadband and mergers between hospitals – the following academics took part: Professor Dr Stefan Bühler (University of St. Gallen), Professor Dr Tomaso Duso (German Institute for Economic Research, Berlin), Professor Dr Justus Haucap (Düsseldorf Institute for Competition Economics), Professor Dr Roman Inderst (Goethe University Frankfurt am Main), Professor Dr Wolfgang Kerber (Philipps University Marburg), Professor Dr Martin Peitz (University of Mannheim), Professor Dr Markus Reisinger (Frankfurt School of Finance & Management), Professor Achim Wambach, PhD (Centre for European Economic Research, Mannheim) and Professor Dr Christine Zulehner (University of Vienna).