EUROPE, MIDDLE EAST AND AFRICA - ANTITRUST REVIEW 2021 - Bundeskartellamt
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EUROPE,
MIDDLE EAST
AND AFRICA
ANTITRUST REVIEW 2021
© Law Business Research 2020EUROPE, MIDDLE EAST
AND AFRICA
ANTITRUST REVIEW 2021
Reproduced with permission from Law Business Research Ltd
This article was first published in July 2020
For further information please contact Natalie.Clarke@lbresearch.com
© Law Business Research 2020Published in the United Kingdom
by Global Competition Review
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© Law Business Research 2020Contents
Contents
Europe
Economics: Overview�������������������������������������������������������������������������������������� 1
Mark Lewis and Rebecca Scott
Analysis Group
European Union
Abuse of Dominance������������������������������������������������������������������������������������� 17
Bill Batchelor and Caroline Janssens
Skadden, Arps, Slate, Meagher & Flom LLP
Cartels and Leniency������������������������������������������������������������������������������������ 31
Elvira Aliende Rodriguez, Caroline Préel, Sujin Chan-Allen and Ruba Noorali
Shearman & Sterling LLP
Joint Ventures����������������������������������������������������������������������������������������������� 44
Catriona Hatton and David Cardwell
Baker Botts LLP
Merger Control���������������������������������������������������������������������������������������������� 58
Kyriakos Fountoukakos, Dafni Katrana and Agathe Célarié
Herbert Smith Freehills LLP
Pharmaceuticals������������������������������������������������������������������������������������������� 83
Jérémie Jourdan, James Killick, Assimakis Komninos, Strati Sakellariou-Witt
and Axel Schulz
White & Case
Cyprus
Commission for the Protection of Competition������������������������������������������� 100
Loukia Christodoulou
Chairperson
iii
© Law Business Research 2020Contents
Denmark
Overview����������������������������������������������������������������������������������������������������� 108
Olaf Koktvedgaard, Søren Zinck and Frederik André Bork
Bruun & Hjejle
Merger Control�������������������������������������������������������������������������������������������� 123
Olaf Koktvedgaard, Søren Zinck and Frederik André Bork
Bruun & Hjejle
France
Overview����������������������������������������������������������������������������������������������������� 136
Jérôme Philippe and Aude-Charlotte Guyon
Freshfields Bruckhaus Deringer LLP
Competition Authority��������������������������������������������������������������������������������� 150
Isabelle de Silva
President
Merger Control�������������������������������������������������������������������������������������������� 156
Mélanie Thill-Tayara and Laurence Bary
Dechert LLP
Germany
Cartels�������������������������������������������������������������������������������������������������������� 167
Anne Caroline Wegner, Helmut Janssen and Sebastian Janka
Luther Rechtsanwaltsgesellschaft mbH
Federal Cartel Office����������������������������������������������������������������������������������� 179
Andreas Mundt
President
Merger Control�������������������������������������������������������������������������������������������� 189
Silvio Cappellari and Stephanie Birmanns
SZA Schilling, Zutt & Anschütz Rechtsanwaltsgesellschaft mbH
Private Antitrust Litigation�������������������������������������������������������������������������� 202
Albrecht Bach and Christoph Wolf
Oppenländer Rechtsanwälte
iv
© Law Business Research 2020Contents
Greece
Overview����������������������������������������������������������������������������������������������������� 216
Cleomenis Yannikas
Dryllerakis & Associates
Norway
Competition Authority��������������������������������������������������������������������������������� 228
Lars Sørgard
Director General
Portugal
Overview����������������������������������������������������������������������������������������������������� 237
Ricardo Bordalo Junqueiro and João Francisco Barreiros
VdA
Competition Authority��������������������������������������������������������������������������������� 249
Margarida Matos Rosa
President
Russia
Competition Authority��������������������������������������������������������������������������������� 254
Igor Artemiev
Head of the Federal Antimonopoly Service of Russia
Spain
Competition Authority��������������������������������������������������������������������������������� 263
José María Marín-Quemada
Chairman of the National Commission for Markets and Competition
Sweden
Overview����������������������������������������������������������������������������������������������������� 271
Elsa Arbrandt, Fredrik Lindblom and Sanna Widén
Advokatfirman Cederquist KB
v
© Law Business Research 2020Contents
Competition Authority��������������������������������������������������������������������������������� 281
Rikard Jermsten
Director General
Switzerland
Overview����������������������������������������������������������������������������������������������������� 289
Daniel Emch, Anna-Antonina Gottret and Stefanie Schuler
Kellerhals Carrard
Turkey
Cartels�������������������������������������������������������������������������������������������������������� 299
Gönenç Gürkaynak and Öznur İnanılır
ELIG Gürkaynak Attorneys-at-Law
Dominance�������������������������������������������������������������������������������������������������� 311
Gönenç Gürkaynak and Burcu Can
ELIG Gürkaynak Attorneys-at-Law
Merger Control�������������������������������������������������������������������������������������������� 324
Gönenç Gürkaynak and K Korhan Yıldırım
ELIG Gürkaynak Attorneys-at-Law
Ukraine
Merger Control�������������������������������������������������������������������������������������������� 336
Denis Lysenko, Sergey Denisenko and Yevgen Blok
Aequo Law Firm
United Kingdom
Cartel Enforcement������������������������������������������������������������������������������������� 344
Frances Murphy, Joanna Christoforou and Michael Zymler
Morgan Lewis & Bockius UK LLP
Merger Control�������������������������������������������������������������������������������������������� 363
Peter Harper, Kate Newman, Claire Morgan, Annabel Borg and Laura Wright
Eversheds Sutherland
vi
© Law Business Research 2020Contents
Middle East and Africa
Angola
Overview����������������������������������������������������������������������������������������������������� 378
Ricardo Bordalo Junqueiro and João Francisco Barreiro
VdA
COMESA
Competition Commission���������������������������������������������������������������������������� 389
Willard Mwemba
Director of the Mergers and Monopolies Division
Israel
Overview����������������������������������������������������������������������������������������������������� 400
Tal Eyal-Boger, Ziv Schwartz and Shani Brown
FBC – Fischer Behar Chen Well Orion & Co
Mauritius
Competition Commission���������������������������������������������������������������������������� 417
Deshmuk Kowlessur
Executive Director
Mozambique
Overview����������������������������������������������������������������������������������������������������� 428
Ricardo Bordalo Junqueiro and Marta Flores da Silva
VdA
vii
© Law Business Research 2020Preface
Global Competition Review is a leading source of news and insight on competition law, economics,
policy and practice, allowing subscribers to stay apprised of the most important developments
around the world.
GCR’s Europe, Middle East and Africa Antitrust Review 2021 is one of a series of regional
reviews that deliver specialist intelligence and research to our readers – general counsel, govern-
ment agencies and private practitioners – who must navigate the world’s increasingly complex
competition regimes.
Like its sister reports covering the Americas and the Asia-Pacific region, this book provides
an unparalleled annual update from competition enforcers and leading practitioners on key
developments in both public enforcement and private litigation. In this edition, Sweden is a
new jurisdiction alongside updates from the European Commission (including a new article on
the abuse of dominance), Cyprus, Denmark, France, Germany, Greece, Norway, Portugal, Russia,
Spain, Switzerland, Turkey, the United Kingdom, Ukraine, COMESA, Angola, Israel, Mauritius
and Mozambique.
In preparing this report, Global Competition Review has worked with leading competition
lawyers and government officials. Their knowledge and experience – and above all their ability to
put law and policy into context – give the report special value. We are grateful to all the contribu-
tors and their firms for their time and commitment to the publication.
Although every effort has been made to ensure that all the matters of concern to readers are
covered, competition law is a complex and fast-changing field of practice, and therefore specific
legal advice should always be sought. Subscribers to Global Competition Review will receive regu-
lar updates on any changes to relevant laws during the coming year.
If you have a suggestion for a topic to cover or would like to find out how to contribute, please
contact insight@globalcompetitionreview.com.
Global Competition Review
London
June 2020
viii
© Law Business Research 2020Germany: Federal Cartel Office
Andreas Mundt
President
In summary
Competition law entrusts competition authorities with keeping markets open to
competition and ensuring contestability. It aims at limiting the economic power
of individual companies and ensuring choice for consumers. The Federal Cartel
Office (Bundeskartellamt) enforces competition law to prevent the concentration
of markets, the abuse of market power and to protect consumers from harm. With
regard to the digital economy, the authority has done pioneering work. Accounting
for factors such as network effects and access to data, especially in connection
with large platforms, has become an integral part of the authority’s enforcement
practice. It evaluates and refines existing approaches to continue to successfully
deal with new questions and new markets. This all has helped to fully maintain
our availability and to fulfil our tasks in the face of the covid-19 crisis.
Discussion points
• Keeping markets open: more important than ever
• Core assignment: breaking up cartels, merger control, preventing abuse
• Useful cooperations: guidance instead of blocking
• Proceedings in the spotlight: Amazon and Facebook
• German law: changing legislation
Referenced in this article
• German Competition Act (GWB), 9th Amendment
• German Competition Act (GWB), draft bill for 10th Amendment
• Bundeskartellamt: Facebook Decision B6-22/16; Amazon Case B2-88/18
• Working Papers on Algorithms and Competition (2019) and The Market Power
of Platforms and Networks (2016)
• Paper on Competition Law and Data (2016)
• Guidance on Transaction Value Thresholds for Mandatory Pre-merger
Notification (2018)
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© Law Business Research 2020Germany: Federal Cartel Office
The Federal Cartel Office (Bundeskartellamt) was founded more than 60 years ago. Since the begin-
ning, fulfilling our task of safeguarding competition and keeping markets open has always proved
to be a cornerstone of the social market economy. In 1958, the Bundeskartellamt took up the work
of prosecuting cartels and the abuse of market power. Since 1973, it has also examined mergers.
In 1999, it was given competences in the area of public procurement law. Since 2017, the authority
has been authorised also to carry out sector inquiries into consumer protection issues, and in the
same year it was decided that a Competition Register for Public Procurement would be established
at the Bundeskartellamt.
Although the Bundeskartellamt benefits from all these new competences, the core task of our
authority remains the safeguarding of functioning markets in all sectors by way of cartel prosecu-
tion, merger control and the control of abusive practices. The Bundeskartellamt has continued to
develop its work in these areas. In recent years, the modernisation of our investigation methods,
the integration of complex economic and econometric analyses in our case work and structural
reforms have further improved the effectiveness of our work. With regard to merger control, the
number of cases registered per year is well in the four-digit range. We conduct these proceedings,
some of which are highly complex, very accurately and efficiently by using advanced analytical
tools. Merger control is hugely important both at the European level and in the member states
because it is the only preventive tool at our disposal to limit market concentration. Merger control
makes it possible for competition authorities to ensure that customers and consumers can still
choose between different suppliers in the future. In antitrust, particularly focusing on the digital
economy, we find answers to many new legal and economic issues. Our proceedings against
Amazon and Facebook very prominently show the significant importance and impact of our work.
The prosecution and punishment of cartels has always been a major priority for the
Bundeskartellamt as cartels greatly harm consumers and other stakeholders. We invest many
resources in uncovering cartels, carrying out dawn raids, evaluating what is now mostly electronic
evidence, hearing witnesses, assessing the facts of the case and often extensively conducting
subsequent court proceedings. In the recent past, the sectors concerned included bicycle whole-
sale, building service providers, magazines, industrial batteries, purchase of steel for the automo-
tive industry, steel production and wholesale of plant protection products. The Bundeskartellamt
receives many tip-offs relating to violations of competition law from sources that come forward
using our leniency programme (key witness programme) and via the anonymous whistle-blower
systems on our website.
While the Bundeskartellamt rigorously prosecutes and punishes cartels, it also helps to enable
useful cooperations. We frequently provide informal guidance to companies seeking to cooperate,
for example via digital platforms. These types of cooperations focus on platforms in the industrial
sector that are designed to improve the digital connectivity of market participants (eg, in relation
to the Internet of Things). This can concern business-to-business activities or endeavours to
automate supply and distribution relations with suppliers and customers. The Bundeskartellamt
generally supports cooperations that aim to improve products and production processes, and
offers to help cooperating partners to design their cooperative relationship in such a way that it
does not violate antitrust law. In assessing a cooperation project, the Bundeskartellamt focuses on
a number of key issues. These projects may not lead to the restriction of competition with regard
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to the relevant competitive factors in the affected markets, such as prices, terms and conditions or
quality, they should be non-discriminatory and they should not create excessive transparency. A
particular focus thus always lies on the type and extent of the information exchanged, the creation
of effective ‘Chinese walls’ between the platform users, the publication of market statistics and
the disclosure of the trading partners’ identities. For example, the Bundeskartellamt has provided
guidance with regard to the launch of the industrial Internet of Things platform Adamos, for
XOM Materials, a digital platform for steel products, and with regard to the start of unamera, an
agricultural trading platform. Another example of a cooperation project closely supervised by the
Bundeskartellamt is the project relating to the joint deployment of fibre-optic cables by Deutsche
Telekom and EWE. The companies have made binding commitments to the Bundeskartellamt to
extensively deploy cables, also covering rural areas, and to grant other companies access to their
network in the future. Under these conditions, the cooperation ensures that the networks are
quickly expanded, a competitive environment is preserved and the access of households to high
bandwidth internet connections is improved.
The Bundeskartellamt’s principles in assessing cooperations combined with a fast and flex-
ible response are proving to be particularly valuable in the coronavirus crisis. In these times,
companies might need to cooperate to maintain the availability of especially needed products
at competitive prices. Cooperation might also be necessary to restart production in sectors
with vastly interdependent production chains. As competition authorities, we must be vigilant
and keep a sense of proportion. Rigorous action must be taken in the event that cartels try to
exploit this crisis or if we detect that positions of dominance are abused, such as through exces-
sive pricing. At the same time, competition authorities have to be available for consultation on
useful cooperations and apply the built-in flexibilities of our competition rules. Since the begin-
ning of the outbreak, the Bundeskartellamt has had to adapt its workflows and has managed to
fully maintain its availability and to fulfil its tasks in the face of the crisis. We have responded
to a large number of requests for informal guidance on covid-19-related coordination between
competitors or within the supply chain and have issued several comfort letters. We acknowledge
that companies are struggling to cope with the covid-19 crisis and therefore require a high level of
legal certainty – often at short notice – to facilitate their self-assessment. Considering the global
scale of the crisis, close coordination with other competition authorities across the world is essen-
tial. The Bundeskartellamt has actively supported joint European efforts, as part of the European
Competition Network, and global efforts, as part of the International Competition Network, to help
and inform companies seeking guidance on competition rules in view of the social and economic
effects of the covid-19 outbreak.
The Bundeskartellamt has always proved able to adapt to even great changes. This also holds
true in the digital era. Digital technology is transforming much of the global economy. The combi-
nation of big data, computing power and cloud-based systems has generated new services and
is rapidly changing existing industries. In the digital economy, a trend towards size is visible
almost everywhere. This is closely connected with peculiarities frequently observed in the
internet context: network effects can result in the concentration of a large number of users on
individual platforms. Access to relevant data can create significant competitive advantages for
some companies. As competition authorities, we have to ensure that markets are kept open and
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newcomers have a chance. For example, we took action against the best price clauses used by
Amazon Marketplace and the hotel booking platforms HRS and Booking.com, which essentially
imply minimum prices and prevent innovative platforms from offering lower prices. In our ASICS
decision, we took a closer look at the prohibition of price comparison engines, sales via third-party
platforms and the use of brand names. Another important case was an abuse proceeding against
the leading German online ticketing platform CTS Eventim, in which we prohibited exclusive
contracts between CTS Eventim and event organisers and advance booking offices. In 2017, we
also prohibited a merger between CTS Eventim and the event agency Four Artists. These cases
in the digital area give the companies some indication of what is and what is not allowed under
competition law.
If there is a tendency towards concentration in the digital economy, abuse control will
become a more important tool than ever before. If a dominant company acts as a digital gate-
keeper and abuses its power, competition authorities should intervene to protect competition
and consumers.
For the Bundeskartellamt, the digital economy has long been relevant for all divisions of the
organisation. Cases relating to the internet and platforms continue to raise new issues. Whereas
in traditional cartel and abuse proceedings we frequently deal with price-fixing agreements or
excessive prices, in the digital economy we often come across free-of-charge services offered at a
zero price, which, in some cases, involve the collection of certain valuable data. In addition, atten-
tion is paid increasingly to terms and conditions regarding the use of personal or business data to
which platform users have to agree in order to use these platforms. Quality, sometimes including
issues such as privacy, gains additional relevance as a non-price parameter of competition. We
encounter new business models and business relationships in the digital world and have to find
ways for these to take into account competition law requirements.
Our proceeding against Facebook has received worldwide attention. For the first time, we have
explored in-depth the relationship between free-of-charge internet services, personal data and
market power.
At the beginning of 2019, the Bundeskartellamt decided to impose far-reaching restrictions on
Facebook relating to the processing of user data. With 23 million daily active users (representing a
market share of 95 per cent) and 32 million monthly active users (amounting to a market share of
80 per cent), the company has a dominant position in the German social networks market. Many
users are not aware that Facebook collects and processes an almost unlimited amount of any type
of user data from third-party sources. In this context, third-party sources are Facebook-owned
services such as Instagram or WhatsApp, but also third-party websites that include components
provided by Facebook, such as the ‘Like’ or ‘Share’ buttons. When these visible components are
embedded in websites and apps, the data flow to Facebook will start as soon as they are opened
or visited. Even if no Facebook icon is visible to users of a website, user data will be transmitted
to Facebook if, for example, the website uses the Facebook Analytics service in the background to
carry out user analyses. Millions of these Facebook components can be encountered on German
websites and apps. According to Facebook’s terms and conditions, users had so far only been able
to use the social network under the condition that Facebook is allowed also to collect user data
outside the Facebook website on the internet or on smartphone apps and allocate these data to
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a user’s Facebook account. In other words, the only choice users had was either to accept the
comprehensive combination of data or to refrain from using the social network. Apart from that,
combining these data sources has enabled Facebook to build a unique data set for each individual
user, substantially contributing to its market power.
In the Bundeskartellamt’s view, Facebook is subject to special obligations under competition
law as it is a dominant company. Facebook’s terms of service and the manner in and the extent
to which it collects and uses data are, in our view, in violation of the European data protection
rules to the detriment of users. In our assessment, this conduct represents above all an exploit-
ative abuse. This approach based on competition law is not a new one, but corresponds to the
established jurisprudence of the German Federal Court of Justice under which not only excessive
prices but also inappropriate contractual terms and conditions could constitute exploitative abuse
(ie, exploitative business terms). The exploitative practice also impedes competitors that are not
able to amass an equivalent amount of data.
With regard to its future data processing policy, we want to ensure that Facebook can no longer
force its users to agree to the practically unrestricted collection of non-Facebook data and the
subsequent allocation to their Facebook accounts. Therefore, our decision covers different data
sources: Facebook-owned services such as WhatsApp and Instagram can continue to collect data.
However, allocating all the data to Facebook user accounts should only be possible subject to the
users’ voluntary consent. Furthermore, collecting data from third-party websites and assigning
them to a Facebook user account should also be possible only if users give their voluntary consent.
Facebook appealed our decision and the Düsseldorf Higher Regional Court suspended it in a
preliminary ruling. The Court assessed key legal issues differently. These issues are highly signifi-
cant for the future state of competition in the digital economy. In our view, data are a decisive
factor in competition. It is precisely the area of data collection and data use where Facebook, as a
dominant company, must take into account that Facebook users practically cannot switch to other
social networks, and it has to comply with the rules and laws applicable in Germany and Europe.
For this reason, the Bundeskartellamt has appealed the preliminary ruling to the German Federal
Court of Justice for further clarification.
Facebook is not our only important recent case in the digital area. The Bundeskartellamt
has dealt with several ‘digital’ cases, ranging from mergers to antitrust issues, which have led to
informal consultations about new business models or envisaged cooperation. A particular issue
we focus on is the role of hybrid platforms in e-commerce. Platforms such as Amazon Marketplace
enable third-party sellers to reach potential customers to offer their products and services. At
the same time, these platforms offer their own products and services. In other words, platform
providers make their infrastructure available to third parties that are also their competitors.
Given the increasing market power of some of these hybrid platforms, this can result in conflicts
of interest and abusive business practices. In 2019, the Bundeskartellamt achieved far-reaching
improvements for sellers active on Amazon marketplaces worldwide. In response to our compe-
tition concerns, Amazon amended its business terms for sellers. The amendments address
numerous complaints about Amazon that the Bundeskartellamt received from sellers. They
concern the unilateral exclusion of liability to Amazon’s benefit, the termination and blocking
of sellers’ accounts, the place of jurisdiction in the event of a dispute, the handling of product
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information and many other issues. As a result of these amendments, we were able to terminate
the proceeding. In a parallel case, the European Commission is currently investigating Amazon’s
collection and use of transaction data.
Another important step towards gaining a better understanding of the complex mecha-
nisms underlying the digital economy and the competition issues that arise in this area is the
sector inquiry into the online advertising sector, which the Bundeskartellamt launched in 2018.
Today, online advertising is a complex system of very different forms of advertising and is of a
highly technical nature. One example is fully automated real-time bidding for digital advertising
space. At the same time, large companies with considerable market relevance, such as Google or
Facebook, have emerged, which – in the view of some market players – have been able to set up
closed ‘walled garden’ systems. The issue of access to and the processing of data seems also highly
relevant from a competition point of view.
Digital technology is not only transforming the global economy but also our work at the
Bundeskartellamt. One important project that we are implementing as part of our digital strategy
is setting up a competition register, which is to function completely electronically. The Act on
the Establishment of a Competition Register for Public Procurement at the Bundeskartellamt
entered into force in summer 2017. The idea behind this register is to prevent companies that
have committed serious economic offences to benefit from public contracts and concessions. The
register will enable contracting authorities to check in a single nationwide electronic database
whether a company has committed relevant violations of the law. Therefore, the register can play
an important part in combating economic crime and competition law violations. Offering this new
level of transparency based on digital technology, the competition register should significantly
increase the preventive effect of criminal and competition law.
Since digitalisation concerns many different proceedings, the Bundeskartellamt is also contin-
uously finding answers to various new legal and economic issues as part of its conceptual work. At a
relatively early stage, we launched an Internet Think Tank with a strong focus on the market power
of platforms and networks. In 2016, we established an interdisciplinary team dealing with digital
matters within the General Policy Division. In the course of restructuring the Policy Division, a dedi-
cated Digital Economy Unit was created, which focuses on conceptual projects and supports our
Decision Divisions in handling cases. We have reinforced our IT Forensics and Data Science Unit
and our data scientists and work closely with our Digital Economy Unit. On the conceptual level,
we have to keep pace with digital markets and their underlying technology. For example, in 2016 we
presented our paper on big data and competition, together with the French competition authority.
In 2019, we published a joint study on algorithms and competition – again together with our
French colleagues. In fact, besides the combination of big data, computing power and cloud-
based systems, algorithms are among the most important technological drivers of the continuing
digitalisation process. They are becoming more and more important, enabling firms to be more
innovative and efficient. However, a debate has arisen on whether and to what extent algorithms
might also have detrimental effects on the competitive functioning of markets. Therefore, in our
joint project, we studied potential competitive risks that might be associated with algorithms.
We elaborated on the concept of algorithms as well as on different types and fields of applica-
tion. We focused in particular on pricing algorithms and collusion, but also considered potential
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interdependencies between algorithms and the market power of the companies using them, and
on practical challenges when investigating algorithms. The insights and conceptual considera-
tions the Bundeskartellamt gained from this will continue to inform its work in the future.
Having gained such a deep understanding of the digital economy from its practical and
conceptual work, the Bundeskartellamt also contributes to legislative change. Our authority has
an active role in sharing practical experiences with government and legislators, commenting on
and suggesting political proposals and preparing for the prospect of acquiring new competences.
Legislation has already clarified several important questions regarding the digital economy in
the ninth amendment to the German Competition Act (GWB) in summer 2017. Parameters such
as network effects and access to data have been incorporated into German law. The amendment
clarified, moreover, that a market can also be assumed to exist if no monetary payments occur.
Furthermore, it implemented a new transaction value threshold for merger filings. Consequently,
the Bundeskartellamt can now examine acquisitions of companies that only achieve a marginal
turnover but for which a relatively high purchase price was paid. For example, this can be the case
with start-ups and other innovative assets. In these types of acquisitions, the high purchase price
is often indicative of an innovative business idea with a high competitive potential. In 2018, the
Bundeskartellamt and the Austrian competition authority published a joint guidance paper on
how these new legal provisions are to be interpreted.
With the amendment to the GWB in 2017, the Bundeskartellamt also gained new competences
in the area of consumer protection. As the ways to enforce consumer protection under civil law are
limited, the Bundeskartellamt’s new investigative powers for consumer protection aim to provide
valuable assistance. Although the Bundeskartellamt does not yet have the power to enforce
compliance with consumer protection legislation in a quick and targeted manner, we can never-
theless conduct sector inquiries if we suspect that certain violations of consumer law are likely to
harm a large number of consumers. We immediately set up a division dedicated to this new task
and have initiated three sector inquires since then.
The sector inquiry into comparison websites was concluded in 2019 and focused on the travel,
energy, insurances, telecommunications and finance sectors. We examined the question as to how
objectively and transparently these websites operate. The problematic areas investigated were
cooperations between the various websites, market coverage of the websites, the way in which
rankings are formed, other factors influencing consumers’ choice and the handling of user ratings.
While comparison websites help consumers to find their way around the internet, with better and
cheaper results, we also detected consumer-unfriendly behaviour on the part of some comparison
websites. For example, there are only a few websites that transparently inform the user about
providers that are not included in the comparison (eg, by providing a negative list). When it comes
to hotel rankings, consumers may find it misleading that the amount of commission paid by the
different hotels is one of the factors influencing a hotel’s position in the ranking. When comparing
energy and telecommunications tariffs, consumers are, in some cases, not informed about the fact
that offers displayed above the actual ranking (ie, position 0) are in fact advertisements.
In our final report, and in a video specifically created for consumers, we compiled valuable
advice for dealing with comparison websites and for helping consumers make better decisions.
For example, we suggest that consumers should look at how rankings are achieved and check
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whether they are based on a large number of offers. Furthermore, consumers should not allow
themselves to be put under pressure by allegedly short supplies or exclusive offers that might not
turn out to be short or exclusive after all but simply raise false expectations.
Currently, we are pushing ahead with our sector inquiries into online user reviews and
the use of data collected by smart televisions. Smart televisions are merely one example of the
ever-growing connectivity of things in private life and the issue of knowingly and unknowingly
disclosing personal data. For the purposes of our inquiry, we have deliberately chosen an everyday
item that is also used by people who are not very knowledgeable about technology. Using our
competence, we aim to shed some light on how producers of smart televisions handle user data,
especially with regard to contractual terms. As for online user reviews, they are one of the most
important criteria influencing consumers in their online purchases. However, there are indica-
tions that user reviews are frequently manipulated or often fake. The primary aim of our sector
inquiry into this area, therefore, is to ascertain the review systems that are particularly prone to
manipulation or falsification and the extent to which consumer law might be violated.
Besides these new competences, there is new legislative change on the horizon that will have
a significant effect on the Bundeskartellamt’s enforcement practice in many areas. At the begin-
ning of 2020, the draft 10th amendment to the GWB was published by the German Ministry for
Economic Affairs and Energy. This reform was triggered by, among other factors, the obligation
to transpose the Directive to empower the competition authorities of the member states to be
more effective enforcers (known as the ECN+ Directive) into German law by 4 February 2021. The
draft bill also provides for changes in the area of merger thresholds and procedure and intends to
strengthen the possibilities of undertakings to receive guidance from the competition authority.
However, a key focus of the amendment lies on modernising the law on the abuse of market
power and on better addressing the challenges posed by the digital economy. The objective is to
offer more effective tools to tackle anticompetitive practices by large platform companies. Most
significantly, it proposes a new provision applicable to undertakings that are of ‘paramount signifi-
cance for competition across markets’. This provision would enable the Bundeskartellamt to issue
a decision stipulating that a company is of such significance. On this basis, we would then be
able to prohibit certain kinds of behaviour, such as self-preferencing, envelopment strategies,
establishing barriers to market entry through the use of data, hindering interoperability or data
portability even in markets where the respective company has not (yet) reached a dominant posi-
tion. The underlying idea of these proposals is not unique as similar proposals have been made
in several jurisdictions and in various expert reports, for example in the United Kingdom, the
Netherlands, the United States and Australia. One of the main challenges consists in striking the
right balance between risks of potentially chilling effects and the desirable pro-competitive effect
on digital markets.
Striking the right balance is also important in other areas. In the digital economy, seemingly
small actions taken by large players can immediately cause significant effects. Therefore, timely
interventions are key to prevent irreparable harm to markets. However, there is a natural tension
between speed and thorough legal and economic assessment. It is not easy to strike the right
balance in complex market environments, particularly when facing moving targets driven by
technological developments. If we conduct our proceedings too slowly, our decisions could be
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too late; for example, a dominant company could have already forced its competitors out of the
market. So we have to find the right balance between procedural efficiency and thoroughness.
One option could be interim measures. The draft bill of the 10th amendment to the GWB aims at
reducing the intervention thresholds to some extent, so that it would be easier to prove that the
conditions for intervention are met. The Bundeskartellamt is closely following the developments
regarding the current proposal and is preparing for possible changes to its enforcement practice.
The Bundeskartellamt has built up strong expertise and has successfully kept up with current
changes. In the digital economy, numerous cases relating to internet platforms and business
models lay the ground for the knowledge and competence the Bundeskartellamt is continuously
expanding. This is also translated into successful advocacy. By exploring highly relevant topics
and turning the results into fruitful discussions, the Bundeskartellamt is expanding its expertise,
setting the agenda and contributing to shaping opinions, as is frequently demonstrated.
Protecting competition is the core task of the Bundeskartellamt. Competition creates better
and cheaper products and leads to innovation. But it is also about ensuring choice and diver-
sity and preventing the concentration of too much power in the hands of the few. Competition
thus has many positive effects that extend beyond a purely economic benefit. That is why the
Bundeskartellamt will continue its efforts to understand the developments of digital markets and
services and to enforce competition law, so that we can help to keep markets open, especially with
regard to digital gatekeepers.
Andreas Mundt
President
Andreas Mundt has been President of the Bundeskartellamt since 2009, a member of the
Bureau of the OECD Competition Committee since 2010 and the Steering Group Chair of the
International Competition Network since 2013.
After qualifying as a lawyer, Andreas Mundt entered the Federal Ministry of Economics
in 1991. In 1993, he joined the staff of the Free Democratic Party in the German parliament.
In 2000, he joined the Bundeskartellamt as rapporteur and later acted as Head of the
International Unit and Director of General Policy.
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The Bundeskartellamt is an independent higher federal authority assigned to the Federal Ministry for Economic
Affairs and Energy. In 1999, its official seat was transferred from Berlin to Bonn as part of the relocation
programme of the government. The Bundeskartellamt has approximately 370 employees. The main task of
the Bundeskartellamt is to apply and enforce the German Act against Restraints of Competition (German
Competition Act, GWB), with a view to protecting competition in Germany. Its tasks include implementing the
ban on cartels, merger control, control of abusive practices of dominant or powerful companies, reviewing
procedures for the award of public contracts by the Federation (since 1999) and consumer protection (since
2017). The Bundeskartellamt can conduct sector inquiries to examine more closely the competition situation
in individual sectors, irrespective of concrete individual proceedings. In addition, the Bundeskartellamt is
currently setting up the Competition Register for Public Procurement.
The Bundeskartellamt bases its decisions solely on competitive criteria. It is independent in its decision-
making (ie, in its handling of cases) and its decisions are not bound by external instructions. This independence
ensures that the Bundeskartellamt can focus on competition criteria in its decision-making.
Kaiser-Friedrich-Str. 16 Andreas Mundt
Bonn, 53113 info@bundeskartellamt.bund.de
Germany
Tel: +49 228 9499 0
www.bundeskartellamt.de
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