Clifford Chance

The German Federal Cartel Office ("German FCO") published its Annual Report for 2023/24.

On 26 June 2024, the German FCO published its 2023/24 Annual Report. The report covers the most important proceedings and, inter alia, offers insights into the 12th Amendment of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen - "ARC").

No merger control prohibitions in 2023

The German FCO reviewed a total of 805 merger notifications in 2023. Only seven of these were examined more closely in second phase proceedings. Of these seven, four merger projects were unconditionally cleared, while two were cleared subject to conditions. One merger project was dropped due to concerns raised by the German FCO in the course of the proceedings.

New powers of the German FCO in the area of consumer protection

In Germany, consumer protection laws are primarily enforced through private litigation. So far, the German FCO had only limited powers in this area. However, the 11th Amendment of the ARC in 2023 gave the German FCO some new powers. The authority can now carry out sector inquiries if there are reasonable grounds to suspect substantial, permanent or repeated infringements of provisions under consumer protection law. It can also be admitted to private consumer law proceedings as an animus curiae and issue statements to the court.

The German FCO already used its new powers in a number of sector inquiries in 2023, inter alia in the area of messenger and video services. Another sector inquiry related to the so-called scoring in online shopping. Furthermore, the German FCO has already identified a number of further areas, e.g. comparison websites, online user reviews, smart TVs and mobile apps, in relation to which sector inquires can be expected to be initiated in the near future.

Consumer protection will continue to be in the focus of the German FCO since its powers are expected to be expanded with the 12th Amendment of the ARC. The relevant legislation has already been drafted and is now subject to the legislative process.

Overall fines of EUR 2.8 million for cartel infringements

The overall level of fines for cartel infringements was rather low and amounted to only EUR 2.8 million. The respective antitrust proceedings related to industrial construction services.

However, the German FCO expects that the level of fines will increase in the near future. In fact, the German FCO conducted 11 dawn-raids in 2023 and two further dawn-raids in 2024. In this context, the report stresses the significance of whistleblower legislation which plays an increasingly important role in the discovery of antitrust infringements.

Digital economy in the focus of market power proceedings

In 2023, 19 cases were initiated as part of market abuse proceedings, most of which related to the digital economy. The German FCO can prohibit certain anti-competitive practices by companies that are of paramount significance for competition across markets. Several proceedings, e.g. against Microsoft and Google, are currently still pending.

In the future, the German FCO expects new challenges posed by the impact of artificial intelligence on competition. Andreas Mundt, President of the German FCO, anticipates a significant risk that digital markets may become even more concentrated, which may lead to an increase of power at different stages of the value chain.