Germany: economist perspective

Federal Cartel Office is the enforcement authority for Germany. Read their profile

Introduction

The implementation of the 10^th amendment of the German Act against Restraints of Competition (ARC) – also referred to as the “ARC Digitalisation Legislation” – on 19 January 2021^[1] extended the enforcement power of the German Competition Authority with respect to digital platforms. Subsequently, the German Competition Authority decided that Alphabet/Google, Meta/Facebook and Amazon do indeed possess “paramount significance for competition across markets” (PSICAM) and, thus, are subject to Germany’s extended abuse control. Against that background, the German Competition Authority opened several proceedings against the leading online platforms, forging ahead in the race of European competition authorities to regulate the behaviour of Big Tech companies and to ensure fair competition (ie, a “level playing field”) in the digital economy. In this article, we will summarise the opened proceedings, which range from, for example, potentially insufficient choice options for consumers regarding Google’s data processing terms to the assessment of Apple’s tracking rules for third-party apps.

The waste management markets have also come under special scrutiny of the German Competition Authority recently. The 10^th amendment of the ARC introduced a novel German merger regulation with section 39a. This new provision imposes strict notification requirements on large companies to seek approval for smaller acquisitions below the usual turnover thresholds under certain preconditions. In early 2022, the German Competition Authority launched an investigation to establish whether Remondis – one of Germany’s largest waste management companies – fulfilled these conditions. The proceedings are motivated by Remondis’ M&A activity that also involved several smaller acquisitions beyond the German Competition Authority’s control. Should the investigation lead to the conclusion that the conditions for section 39a were fulfilled, each of Remondis’ acquisitions might be subject to the competition authority’s approval for a period of three years.

Furthermore, as in many other European countries, fuel prices and the preservation of competition in fuels markets have been given particular political attention in Germany and Austria. In both countries, the competition authorities initiated sector inquiries in spring 2022 with a focus on refineries and wholesale in Germany and refineries and fuel stations in Austria. The German Competition Authority published an interim report end of November, finding no sign of price-fixing agreements between mineral oil companies, with energy tax reductions having been passed on to consumers. The Austrian Competition Authority published its final report already in August 2022, noting a divergence of international fuel price notations from crude oil prices, which would have resulted in a significant increase in refinery margins. The Austrian Competition authority neither found evidence of permanently increased margins in retailing, which would have pointed to a lack of competition.

Apart from that, the German Competition Authority approved in February 2022 a takeover of 285 fuel stations in Southern Germany of OMV Retail Deutschland GmbH by EG Group Limited. The approved takeover has been by far the largest takeover of fuel stations in Germany in recent years. In its decision, the German Competition Authority slightly deviated from its long-established so-called accessibility model, defining geographic markets on the basis of 20 to 30 minutes driving time distance around the OMV fuel stations to be acquired, no longer distinguishing between urban and rural areas. This is the result of an economic analysis of Customer Loyalty Programs data, which showed that the previously applied wider market delineation for rural areas was not fitting.

From an economic perspective, local catchment area analysis has become a standard and has been the focus also of other merger cases – ranging from groceries (sell-off of the REAL supermarkets, where also data from customer loyalty programmes was used to determine catchment areas) to discount furniture stores (XXXLutz/Tessner).

Besides further foray into local catchment area analyses, in March 2022 the German Competition Authority approved he plans of Deutsche Kreditwirtschaft to continue their collaboration to develop a uniform payment system for all payment channels – thus paving the way for the ambitious goal to create a German alternative able to compete with PayPal, VISA and MasterCard.

Regarding cartel enforcement, in 2021 fines totalling €105 million were imposed. This is below the long-term average fine amount in previous years, likely due to a 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.

Several large cartel cases, which have come under wide litigation in previous years, are pending before various courts in 2022. Prominent examples include the sugar, the trucks or the marketing of woods industry. A wave of cases has also been triggered by liquidators of Schlecker, a drugstore that went bankrupt in 2012. The liquidators have been claiming damages amounting to €212 million from Schlecker’s suppliers, involved in a drugstore products cartel that was active between 2004 and 2006. In the first two instances, the claim was not successful. The Regional Court as well as the Higher Regional Court in Frankfurt dismissed the claim on substance in 2018 and 2020 respectively.

In 2022, the Federal Court of Justice renegotiated in the matter of a cartel-damage claim of Schlecker the question of whether a presumption is justified that an exchange between competitors about secret information relating to the current or planned price-setting behaviour vis-à-vis a joint customer leads to a cartel overcharge. The Federal Court of Justice decided in favour of Schlecker, that the appeal court had failed to properly consider this presumption, referring the case back.

The article ends with a brief overview of institutional changes at the German Competition Authority and an outlook.

Recent legal and institutional developments – tightening the grip on markets with insufficient levels of competition

Following broad public discussions about increased gas prices and the disgorgement of oil companies’ surplus profits earlier in 2022, the German Federal Ministry for Economic Affairs and Climate Action published a reference draft of the 11th amendment to the German Act against Restraints of Competition (ARC) in September 2022. The overall aim of the draft amendment is to strengthen competition to the benefit of consumers. According to the reference draft, the German government plans notably to tighten the grip on markets with insufficient levels of competition, even in absence of any anticompetitive conduct. Especially markets with oligopolistic and transparent structures can be expected to come under scrutiny of the Competition Authority. The following aspects are particularly worth noting.

First, a central element of the reference draft are the new competencies and measures with which the Competition Authority may intervene in specific sectors of the economy. Until now, a sector inquiry conducted by the Competition Authority could result in cartel proceedings if it led to the conclusion that possible antitrust infringements had occurred. Under the proposed legislation, the Competition Authority will have the right to impose various measures and remedies also in the absence of any infringements, if a previously conducted sector inquiry suggests that significant distortions to competition exist in the market under investigation. In this case, the Competition Authority can access a range of measures, including common norms and standards, the granting of rights to use intellectual property to third companies, the obligation of large companies to seek approval for smaller acquisitions or the organisational separation of company divisions. Even unbundling of enterprises is named as an “ultima ratio” measure. This proposal is considered a paradigm shift in German antitrust policy.^[2] In this, Germany follows the example of other states, especially the UK, where the National Competition Authority (CMA) can access a range of competencies – including the unbundling of companies – as remedies to insufficiently competitive markets.

The new provision has been criticised in that it does not provide legal certainty with respect to whom the various measures can target. Also, with the exception of unbundling as a last resort, the measures follow no order of priority, so that it is unclear what companies can expect from the competition authority.^[3]

Second, the draft legislation intends to facilitate the ordered disgorgement of profits from antitrust violations. While this is in principle possible under the current legislation, the tool has never been used in practice because the Competition Authority would have to calculate the infringers’ economic advantage and to prove intent or negligence in addition. The standard of proof is lowered considerably in the draft legislation. From now on, the statutory presumptions apply that the cartel infringement caused an economic advantage for the company concerned and that this advantage equals at least 1% of the national turnover with the products or services in question. Requirement of fault is no longer necessary.

Third, the German legislator continues to tackle digital matters. In particular, the German Competition Authority introduced similarly to the European Commission a legislation, which targets so-called “gatekeepers” in digital markets (ie, companies that can prevent market access of other companies due to their market power (see also next section)).

The 11th amendment of the ARC is expected to undergo a fast legislative process and to come into effect soon.

Interventions in the digital economy

The newly created intervention competence of section 19a of ARC was introduced in 2021 with the 10^th amendment of the ARC and has paved the way for stronger action against major digital platforms in Germany. Within only six months of being in force, the German Competition Authority has initiated proceedings against Alphabet/Google, Amazon, Meta/Facebook and Apple (GAFA). While for Apple, the proceedings are still under way, the German Competition Authority has decided that Alphabet/Google, Meta/Facebook and Amazon indeed possess PSICAM and, thus, are subject to Germany’s extended abuse control. Specifically, if a company is found to hold PSICAM, by section 19a(2) ARC, certain types of conduct including self-preferencing, tying and bundling as well as limiting interoperability and data portability can be prohibited. Against that background, the German Competition Authority has launched the following proceedings against the GAFA companies:

• against Alphabet/Google: (i) potentially insufficient choice options for consumers regarding Google’s data processing terms; (ii) a potential self-preferencing strategy and/or discrimination of certain publishers within “Google News Showcase” (a Google offering to prominently present news content from publishers); and (iii) a potential anticompetitive restriction of alternative map providers within “Google Maps”;
• against Meta/Facebook regarding the linkage between Oculus virtual reality products and the Facebook network; and
• against Apple regarding the tracking rules for third-party apps (in parallel to the investigation of PSICAM).

Additionally, two proceedings are under way against Amazon investigating (i) Amazon’s price control mechanisms on the market place and (ii) agreements with brand manufacturers, which potentially impede sales of independent retailers on the platform. Those proceedings, however, were still started in 2020 in accordance with Germany’s traditional abuse control laws and not within the context of section 19a ARC.

With this new regulation and the corresponding proceedings, the German Competition Authority is forging ahead in the race of European competition authorities to regulate the behaviour of big tech companies and to ensure fair competition (ie, a “level playing field”) in the digital economy. Accordingly, the topic of this year’s antitrust working group meeting organised by the German Competition Authority was “merger control in the digital age – challenges and development prospects” discussing. among other things, whether the classic theories of harm are sufficient to address concerns arising with mergers in the digital world and whether adjusted rules are required for companies holding PSICAM, namely (stricter) notification obligations, (reversed) burden of proof and a (lower) probability standard for proving a significant impediment to effective competition.

The topics of multiple of the German Competition Authority’s recent sector inquiries – some of them addressing concerns under consumer protection law – also highlight the German Competition Authority’s intent to tackle digital matters: In addition to the final report on the sector inquiry into mobile apps (July 2021), the German Competition Authority published an interim report on the issue of interoperability related to the sector inquiry into messenger and video services (November 2021). Furthermore, it launched a sector inquiry into scoring practices in the online retail sector (March 2022) and, most recently, it published a report on non-search online advertising for public discussion (August 2022).

In parallel, at the European level, “gatekeepers” are targeted by the Digital Markets Act (DMA), which entered into force on 1 November 2022. While the objectives of section 19a ARC and the DMA are similar, a comparison of the two approaches reveals important differences: First of all, the DMA goes even further than section 19a ARC as it includes a specific catalogue of obligations and prohibitions for designated gatekeepers (as well as sanction mechanisms for the European Commission), which will apply directly and immediately (ie, without further order). Section 19a ARC can be regarded as more flexible in its application, because it provides for a case-by-case analysis and can also cover new types of behaviour that may pose a threat to competition in the future.^[4] Second, the DMA follows a “one size fits all” approach (ie, the regulation applies to all designated gatekeepers). In contrast, under section 19a ARC, the German Competition Authority is required to impose tailored obligations. Lastly, unlike section 19a ARC, where a certain conduct is permissible if there is an objective justification (where the burden of proof lies with the company), the DMA does not provide for the possibility of an objective justification.^[5]

While the interaction between the DMA and section 19a ARC is still debated (and Andreas Mundt, the German Competition Authority’s long-running president, has on multiple occasions insisted on more leeway for national competition authorities)^[6], the German Competition Authority has in its recent annual report emphasised the complementary nature of the two regulations and that the well-established cooperation and coordination between the competition authorities will be continued in the future.^[7]

The recently published draft on the 11^th amendment of the ARC (September 2022) confirms that, looking forward, the effective control of digital platforms remains a key issue for both the German legislator and competition authority. The 11^th amendment is intended to create the legal basis for the German Competition Authority to support the European Commission in the official public enforcement of the DMA (as well as to participate as amicus curiae in related court proceedings) and also to secure private enforcement of the DMA in Germany and, as such, to strengthen the role of German courts.

(Micro-) Merger control in the waste management sector

For several years, the waste management sector – and in particular the activities of the Rethmann Group/Remondis (Remondis), one of Germany’s largest waste management companies – have been subject to competitive concerns by the German Competition Authority. In 2020 and 2021, Remondis was ordered to give up on two mergers: The first transaction was the takeover of DSD, Germany’s largest dual system, initially blocked in 2019 and confirmed by the Higher Regional Court in 2020. The second proposed transaction concerned the merger of TSR, a Remondis subsidiary, and the Rhein-Main Rohstoffe GmbH. The notification was withdrawn by the parties in December 2021 after the German Competition Authority had expressed its concerns that the merger would create a dominant position on the market for purchasing scrap iron for the processing with scrap shears.^[8] Also in December 2021, the joint venture between K+S and Remex (another Remondis subsidiary) for the disposal of hazardous waste was cleared, but only after the parties’ commitment to extensive remedies to mitigate the competition authority’s concerns.^[9]

Remondis’ M&A activities also continue to be scrutinised by the German Competition Authority: In particular, Remondis is the first company that may become subject to the novel German merger regulation of section 39a ARC, which was introduced in 2021 with the 10th amendment of the ARC and imposes strict notification requirements on large companies to seek approval also for smaller acquisitions, i.e. acquisitions of companies that would not reach the usual turnover thresholds. In early 2022, the German Competition Authority announced that they launched an investigation of whether they could invoke section 39a ARC on Remondis and that they initiated the required sector inquiry to establish the necessary facts. The proceedings are motivated by Remondis’ M&A activity, which also involved several smaller acquisitions in recent years. Due to the turnover thresholds, these acquisitions are beyond the German Competition Authority’s control, but, according to Andreas Mundt, they give rise to concerns about growing concentration in the waste sector’s regional markets.

If Remondis meets the preconditions of section 39a ARC, this allows the German Competition Authority to examine basically any of this company’s acquisitions for a period of three years. The preconditions include criteria regarding the acquirer’s and the target firm’s size, but also that there must be “objectively verifiable indications” that future mergers could significantly impede effective domestic competition (SIEC) in the designated economic sector – notably not the relevant market – and to this end, the German Competition Authority also has to carry out a sector inquiry.

In practice, the new provision raises questions from both a legal and economical perspective, which have been the subject of some recent academic discussion papers.^[10] In particular, as mentioned above, section 39a refers to “economic sectors” rather than to clearly defined antitrust markets. In this context, the economic sector serves as point of reference to determine whether the company concerned is large enough to fall under the new provisions (a share of at least 15% of the economic sector in Germany represents the relevant threshold for the company’s size – however, the relevant metric is not defined further). In addition, the economic sector also determines the scope of the required sector inquiry and, more importantly, to assess the SIEC. This last part is noteworthy as it is in stark contrast to standard competition economics in which the harm is in essence always tied to a relevant market. In many cases, however, an economic sector rather seems to comprise a bundle of relevant markets, raising the question of how the competitive assessment should be implemented. One way to address the dichotomy of economic sector vs. relevant market would be to base the competitive assessment as usual on the relevant market and then, in a second step, find a measure to determine whether the whole economic sector is “infected” by the SIEC such that proceedings according to section 39a ARC are justified. The explanatory memorandum^[11] leaves all of this at the discretion of the German Competition Authority. Given the lack of precedents, the new provision creates considerable legal insecurity for the companies concerned.

The respective proceedings against Remondis have raised additional questions. So far, the German Competition Authority has not appropriately considered that private waste management companies have been facing increasing competition from waste management services provided by municipalities.^[12] Most notably, the German Competition Authority has left out the public sector in its market share calculations (ie, it derives market shares based on a market consisting only of private sector companies). If competition from the public companies was properly taken into consideration, it is at least doubtful whether Remondis’ market position is in fact as strong as the German Competition Authority alleges.

The latest reference draft of the 11th amendment of the ARC provides additional uncertainty given that it provides for the (ultima ratio) option of unbundling a dominant enterprise in case of an unfavourable outcome of a sector inquiry, even without any anticompetitive conduct of the company concerned.

Sector inquiries and the last ‘big’ concentration in the German fuels market

As in many other European countries, fuel prices and the preservation of competition in fuels markets have been given particular political attention in Germany and Austria. In Germany in 2013, the Market Transparency Unit for Fuels (MTUF) was founded in order to enable consumers to find out about fuel prices in near real-time and make better purchasing decisions. Ultimately, the introduction of the MTUF was supposed to strengthen competition and to improve the German Competition Authority’s possibilities to intervene in the case of “abuse of market power”. Because price transparency can foster collusion, the activities of the MTUF have been evaluated by the Federal Ministry of Economics and Climate Protection in 2018, which drew a positive balance, but noted that price adjustments during the day had become more pronounced since the introduction of the MTUF.

According to Andreas Mundt, the war in Ukraine and its consequences led to a significant divergence of crude oil prices, refinery sales prices and fuel station prices. For this reason, the German Competition Authority initiated in April 2022 an ad hoc sector inquiry with a focus on the refinery and wholesale level. It published an interim report end of November, finding no sign of price-fixing agreements between mineral oil companies, with energy tax reductions having been passed on to consumers. Further investigations would be required to analyse whether joint market dominance could be an issue at the refinery level.The German Competition Authority would also continue to investigate the concrete formation of prices.

Similarly, the Austrian Federal Competition Authority (AFCA) launched a sector inquiry into the fuels market in March 2022, focusing on the development of prices and margins of refineries and fuel stations. The AFCA published its final report in August 2022, noting a divergence of international fuel price notations from crude oil prices, which would have resulted in a significant increase in refinery margins. The authority found no evidence of permanently increased margins in retailing, which would have pointed to a lack of competition. Nevertheless, the Ministry of Labour and Economic Affairs launched upon request of the Austrian Chamber of Labour a price control commission, which further investigates fuel pricing in Austria.

Apart from that, the German Competition Authority approved in February 2022 a takeover of 285 fuel stations in southern Germany of OMV Retail Deutschland GmbH by EG Group Limited subject to the provision that 23 OMV stations and 25 EG Group stations in areas, in which the merger would otherwise have raised competition concerns, were sold to third parties. The approved takeover has been by far the largest takeover of fuel stations in Germany in recent years. In comparison, the second-largest proposed takeover of 59 fuel stations of OMV by Total Deutschland GmbH in the area around Chemnitz, Dresden, Erfurt and Leipzig in 2009 had not been approved.

Data-driven catchment area analysis hitting the home stretch

In its OMV/EG Group merger decision, the German Competition Authority defined geographic markets on the basis of 20 to 30 minutes’ driving time around the OMV fuel stations to be acquired (so-called accessibility model^[13]). Deviating from its previous practice, the German Competition Authority no longer distinguished between urban and rural areas. For rural areas, the German Competition Authority previously defined geographic markets on the basis of 60 minutes’ driving time. Data from customer loyalty programs showed that this market delineation was too wide since on average 80% of sales are achieved with customers who drive to the fuel stations within approximately 27 minutes. Furthermore, the German Competition Authority no longer pursued a weighting according to distance from the targeted fuel stations when calculating market shares. Instead, it assessed market shares within both narrower (20 minutes) and wider (30 minutes) catchment areas.

More in-depth catchment area analyses based on data from customer loyalty programmes were carried out repeatedly in the grocery retail sector, specifically in the cases dealing with the sell-off of Metro’s REAL stores to Kaufland, Globus and EDEKA.^[14] On the basis of the customer loyalty data for a specific REAL store, the authority determined the local relevant market as the area, in which 90% of the customers of the respective REAL store were resident. To identify potentially critical stores for the full-blown competitive assessment, the German Competition Authority relied not only on the parties’ joint market shares in the catchment area and the increment (ie, the delta market share), but, in addition, they took the parties’ joint market share in the so-called core area, in which two-thirds of all customers were resident, into account.

While the technical approach to arrive at the 90% catchment area deviates from standard practice in other jurisdictions and can be discussed, these analyses still can be regarded as a big step forward from the German Competition Authority’s approach to geographic market definition in previous cases in the grocery retail sector, particularly EDEKA/Kaiser’s Tengelmann and Rewe/Coop, where – absent from an economic rationale – the German Competition Authority in essence relied on administrative borders within cities to determine the local relevant markets.

Paving the way for a German alternative to PayPal, VISA and MasterCard

In March 2022, the German Competition Authority announced that it would not raise any objections to the plans of Deutsche Kreditwirtschaft (the association of Germany’s leading credit institutions) to continue their collaboration to develop the giropay payment system into a uniform payment system for all payment channels – including e-commerce, stationary retail and P2P. The integration of the digital girocard as a further access channel in the giropay online payment system is scheduled to start in the second half of the year.

The German Competition Authority’s deciding reasons were twofold: First, Deutsche Kreditwirtschaft agreed to refrain from the exclusivity obligation that was initially foreseen to secure the banking associations’ considerable investments in giropay. The exclusivity clause was considered to be problematic due to its capability to impede competition in innovation as some of giropay’s competitors could rely on cooperation partners from the German banking industry for entering the German market or expanding their offering. Second, the German Competition Authority consented with the parties that the collaboration enhances competition with established (online) payment methods such as PayPal, VISA or Mastercard.

Cartel enforcement

Over the last decade, cartel fines have been at varying levels in Germany. Starting from a record level of fines of over €1 billion in 2014, fines followed a downward trend totalling over €208 million in 2015, €125 million in 2016 and €66 million in 2017, bringing it back to the levels of the years before 2014. From 2018 onwards, the declining trend came to a halt: in 2018, the Competition Authority imposed fines totalling approximately €376 million, €848 million in 2019 and €349 million in 2020.

In 2021, the German Competition Authority imposed fines in cartel proceedings of around €105 million. Affected were eleven companies or trade associations and eight natural persons in special steel production, steel forging, musical instruments, school bags and consumer electronics. A lower level of cartel fines was expected due to a covid-induced low number of dawn raids. In early 2022, fines were imposed on manufacturers of expansion joints for bridges.^[15]

Germany continues to be one of the preferred jurisdictions for private litigation cartel cases within Europe in 2022. Conditions for damages actions have been improved over recent years in several amendments to the ARC.^[16] In addition, the Federal Court of Justice has defined the requirements for determining damages in several decisions in the rail and truck cartels in recent years. In 2021, the Court declared, for example, the agreement of consolidated damages in general terms and conditions as generally admissible. The number of private actions for damages brought by customers or suppliers of a cartel has subsequently considerably increased in recent years.^[17] Companies in many different economic sectors including sugar, trucks, rails, bathroom fittings, chipboard panels, detergents, television tubes, packaging or confectionery have come under wide private litigation.^[18]

The trucks cartel illustrates the significance of damages actions in Germany, where around 480 filed actions (as of June 2022) occurred in Germany alone.^[19] Equally, the sugar cartel case continues to be under broad litigation as in previous years.

A wave of cases has also been triggered by liquidators of Schlecker, a drugstore that went bankrupt in 2012. The liquidators have been claiming damages amounting to €212 million from Schlecker’s suppliers, involved in a drugstore products cartel which was active between 2004 and 2006. In the first two instances, the claim was not successful. The Regional Court as well as the Higher Regional Court in Frankfurt dismissed the claim on substance in 2018 and 2020 respectively. In 2022, the Federal Court of Justice renegotiated the question of whether a presumption is justified that an exchange between competitors about secret information relating to the current or planned price-setting behaviour vis-à-vis a joint customer leads to a cartel overcharge. The Federal Court of Justice decided in favour of Schlecker, that the appeal court had failed to properly consider this presumption, referring the case back.

Furthermore, with two new class actions claiming damages for affected purchases in the billions of euros against a plant protection products cartel and with several court proceedings against federal states concerning the marketing of wood, Germany has cemented its position in Europe as a central litigation hub.^{[20] [21]}

Damages actions will likely continue to play a significant role in antitrust law in the future, as the Competition Authority pointed out.^[22] This can be expected to lead to continued complex empirical work by economists in the quantification of damages.

Institutional development and outlook

For about a year now, the German Competition Authority’s chief economist team (department G3) has been headed by a new Chief Economist, Marcel Balz. Marcel Balz has already been with the German Competition Authority for approximately 10 years and is replacing Arno Rasek in this role, who is now part of the German Competition Authority’s ninth decision department, dealing with cases in the hospitality sector, transport, financial services and insurances. The size of the Chief Economist Team (CET) has been more or less constant in recent years consisting of eight to 10 economists.

Over the course of this year, there has not been a lighthouse Phase II merger case exhausting the CET’s resources like in the past. Rather, jointly with the newly founded “sister department” G6, called “Digital Economy”, the CET was (and still is) heavily involved in the section 19a ARC proceedings against the GAFA companies (see above). In parallel, several sector inquiries – among others in the waste management sector, hospitals and in the digital economy – were either started or finalised.

While at the European level, the relevance of economic analyses in competition cases is currently discussed controversially, experiencing a downturn, the same development is not expected in Germany. Given that economic analyses never really were of paramount significance in the German Competition Authority’s decisions, the downturn will likely not be felt.

Besides its internal resources, the German Competition Authority actively maintains its exchange with the academic community on both, legal issues (within the Arbeitskreis Kartellrecht) and economic issues (within the Arbeitskreis Wettwerbsökonomie).^[23]

Looking ahead, busy times are guaranteed for the German Competition Authority. With the 10th amendment of the ARC and the initiation of proceedings against the GAFA companies, a long-lasting battlefield was established. Furthermore, there is a backlog in cartel enforcement due to covid-19 and a broad portfolio of sector inquiries. Based on its strong reputation, supported by a network of national and international competition authorities, and guided by its political independence, the German Competition Authority will master these challenges and offer a vision for the global antitrust community.

Notes

^[1] 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).

^[2] Wellman, U. and Valadkhani, N., 2022, The 11th amendment to the Act against Restraints of Competition: Paradigm shift in Antitrust law. Lexology, online. Available from: https://www.lexology.com/library/detail.aspx?g=7f05712c-73d7-45f6-b813-cb0a360d83a6.

^[3] Ibid.

^[4] Bundeskartellamt, 2022, “Das Bundeskartellamt - Jahresbericht 2021/22”, online available at: https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Jahresbericht/Jahresbericht_2021_22.pdf?__blob=publicationFile&v=8, p. 38.

^[5] Haucap, J. and Schweitzer, H., May 2021, «Die Fesselung der Tech-Giganten», böll.brief – Grüne Ordnungpolitik, online available at: https://www.boell.de/sites/default/files/2021-06/b%23246ll.brief%20G15%20Die%20Fesselung%20der%20Tech-Giganten.pdf.

^[6] See e.g. https://www.politico.eu/article/germany-competition-chief-sees-vanguard-digital-role-risk/.

^[7] Bundeskartellamt, 2022, “Das Bundeskartellamt – Jahresbericht 2021/22”, online available at: https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Jahresbericht/Jahresbericht_2021_22.pdf?__blob=publicationFile&v=8.

^[8] Bundeskartellamt, 14.12.2021, Press Release: Withdrawal of merger notification in scrap recycling sector due to competition concerns.

^[9] Bundeskartellamt, 2.12.2021, Press Release: Joint Venture between K+S and Remex for disposal of hazardous waste cleared only after implementation of extensive offsetting measures.

^[10] See e.g. Brinker, I. und Haag, K., 2021, « Fusionskontrolle neben der Fusionskontrolle: Der neue §39a GWB », Betriebs Berater, vol. 35, p. 1987ff.

^[11] Deutscher Bundestag, 2020, Gesetzentwurf der Bundesregierung: Entwurf eines Gesetzes zur Änderung des Gesetzes gegen Wettbewerbsbeschränkungen für ein fokussiertes, proaktives und digitales Wettbewerbsrecht 4.0 und anderer wettbewerbsrechtlicher Bestimmungen (GWB-Digitalisierungsgesetz). Drucksache 19/23492. Online available at: https://dserver.bundestag.de/btd/19/234/1923492.pdf.

^[12] In the Federal State of Saxony-Anhalt for example, eleven out of sixteen districts were served directly by municipalities. Boyce, A. and Hirst, N., 2022, « German garbage sector holds lessons for Big Tech in small acquisitions », MLex Comment. Online available at: https://content.mlex.com/#/content/1355435.

^[13] The German Competition Authority applies the so-called accessibility model for defining geographic markets in the ​​fuels sector since the Shell/ HPV Decision (B8-134/07) in 2008.

^[14] Bundeskartellamt, 17.03.2021, Press Release: Edeka’s acquisition of Real stores only partly cleared – Edeka can only acquire 45 stores without conditions; and Bundeskartellamt, 22.12.2020, Press Release: Kaufland can acquire 92 Real stores subject to conditions – Globus can acquire 24 Real stores.

^[15] Bundeskartellamt, 2022, Annual Report 2021/22, p. 16ff.

^[16] Bundeskartellamt, 2022, Annual Report 2021/22, p. 21.

^[17] Bundeskartellamt, 2021, The Bundeskartellamt: Organisation, Tasks and Activities, p. 15.

^[18] Bundeskartellamt, 2021, The Bundeskartellamt: Organisation, Tasks and Activities, p. 15.

^[19] Bundeskartellamt, 2022, Annual Report 2021/22, p. 21.

^[20] Agrarheute, 2022, Pflanzenschutzkartell: Weitere Sammelklage von über 500 Landwirten. Online available at: https://www.agrarheute.com/management/recht/pflanzenschutzkartell-sammelklage-ueber-500-landwirten-598656.

^[21] Chmielewski, M., 2022, Grauzone Holzvermarktung – Redeker wehrt 120-Millionen-Euro-Klage ab. Online available at: Grauzone Holzvermarktung – Redeker wehrt 120-Millionen-Euro-Klage ab | juve.de.

^[22] Bundeskartellamt, 2022, Annual Report 2021/22, p. 21.

^[23] In the latest meeting of the economic working group (sixth meeting of the group in winter 2021) – discussing competition conditions on the market for the first-time sale of electricity and in furniture retail – the following academics took part: Prof. Dr. Stefan Bühler (Universität St. Gallen), Prof. Dr. Tomaso Duso (Deutsches Institut für Wirtschaftsforschung, Berlin), Prof. Dr. Justus Haucap (Düsseldorf Institute for Competition Economics), Prof. Dr. Roman Inderst (Goethe-Universität Frankfurt am Main), Prof. Dr.Martin Peitz (Universität Mannheim), Prof. Dr. Markus Reisinger (Frankfurt School of Finance & Management), Prof. Dr. Ulrich Schwalbe (Universität Hohenheim), and Prof. Achim Wambach, PhD (Zentrum für Europäische Wirtschaftsforschung, Mannheim).