FCO publishes annual report: focus on high fines and digital economy

COVID-19
Cartel prosecution
Merger control
Digital economy
Energy industry
Trade
Consumer protection
Competition Register

In September 2020 the Federal Cartel Office (FCO) published its Annual Report 2019. This article highlights the topics which the FCO covered in its report.

COVID-19

Against the background of the COVID-19 pandemic, the FCO emphasises that companies are still encouraged to address cooperation agreements relevant to competition law in order to obtain legal certainty. The focus is primarily on:

• cooperation in production to avoid bottlenecks;
• cooperation in logistics, distribution and warehousing; and
• the restart of complex supply chains.

Cartel prosecution

In 2019 the FCO imposed fines totalling €848 million on 23 companies and associations and 12 natural persons. For this purpose, the FCO published an overview of selected fines. The cases concerned:

• technical building equipment;
• the wholesale of pesticides;
• plate embossers;
• liquified gas suppliers;
• steel manufacturers (quarto plates);
• car manufacturers (steel purchases);
• bicycle wholesalers (vertical price fixing); and
• magazine lending services (customer allocation).

Merger control

The FCO received approximately 1,400 notifications in 2019 – 14 second-phase proceedings were carried out, with four prohibitions, six withdrawals, one conditional clearance and three clearances.

The FCO's annual report also draws attention to its guidelines that support industry with regard to merger control. For example, in 2019 the FCO supported the Federal Association of the German Ready-Mixed Concrete Industry in developing a guideline on the antitrust admissibility of bidder and supplier consortia in the ready-mixed concrete industry.

Digital economy

With regard to the digital economy, the FCO highlights the cases of Facebook and Amazon in particular (for further details please see "Federal Court of Justice demonstrates antitrust law limits to data collection through Facebook" and "Amazon versus marketplace merchants: FCO is investigating").

With regard to digital platforms, the FCO highlights that it has provided guidance to the following platforms:

• unamera – a trading platform for agricultural products (2020);
• XOM Materials – a trading platform for steel products (2018);
• ECEMENT – a cement trading platform (2017);
• ADAMOS – a platform for mechanical engineering connected with Industry 4.0 and the Industrial Internet of Things; and
• OLF – a trading platform in the mineral oil sector (2020).

In addition, the FCO is conducting a sector inquiry into online advertising.

Energy industry

In the energy industry, the FCO and the Federal Network Agency published a guideline in September 2019 for the control of abusive practices in electricity generation and the wholesale trade sector under antitrust and energy wholesale law. The guideline explains in detail the objectives, rules for application and scope of control of abusive behaviour in the electricity generation sector.

In addition, the Federal Network Agency and the FCO published their joint monitoring report in November 2019 on developments in the electricity and gas markets.

Trade

The annual report highlights that the FCO prevented a planned purchasing cooperation in the furniture sector.

In September 2019 the FCO considered an anniversary discount for the XXXLutz Group's 75th anniversary, which the company had demanded as a lump sum. Due to the FCO's insistence, XXXLutz waived this flat-rate claim of 7.5% for two three-month periods in 2020 towards its suppliers.

Consumer protection

With the ninth amendment to the Competition law, which came into force at the beginning of June 2017, the FCO was given powers in economic consumer protection for the first time.

Comparison portals
In April 2019 the FCO published the results of a sector inquiry into online comparison portals.

Smart TV
In July 2020 the FCO published its final report in its smart TV sector inquiry.

Online user ratings
A third sector inquiry concerning consumer protection considered online user ratings. User ratings are often a key criterion for consumers when making online purchases (besides price).

Competition Register

The Competition Register aims to provide public contractors, sectoral contractors and concession-awarding authorities with information on the relevant legal violations in award procedures quickly and electronically. The electronic register is set to begin operations at the end of 2020. With the data stored in the Competition Register, the public-contracting authorities, sectoral-contracting authorities and concession-awarding authorities will be able to receive the necessary information in a timely manner in order to examine the grounds for exclusion in a reliable manner.

For further information on this topic please contact Sascha Dethof at Fieldfisher (Germany) LLP by telephone (+49 211 950 749 0) or email (sascha.dethof@fieldfisher.com). The Fieldfisher (Germany) LLP website can be accessed at www.fieldfisher.com.