In a press release reviewing its activity in 2013, the German Federal Cartel Office (the “FCO”) summarised its most important proceedings in merger control, cartel prosecution and internet economy.
The number of cases subject to merger control remains stable at 2012 levels with around 1,100 notified mergers. Six out of 18 cases that were closely examined in second phase proceedings were cleared, one was cleared subject to conditions and two were prohibited. In June 2013, the eighth amendment to the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) came into force. Changes included the introduction of the significant impediment to effective competition test (the “SIEC test”) in German merger control. The test allows the prohibition of mergers that do not legally constitute market dominance, but none the less impede competition in the market through a variety of other factors.
With regards to cartel prosecution, the FCO imposed fines adding up to around €240 million on 54 companies and 52 individuals in 11 cartel cases. These include the conclusion of the rail cartel case where the FCO has imposed fines totaling 124.5 million euros on four rail manufacturers and suppliers for concluding anti-competitive agreements to the detriment of Deutsche Bahn AG and fines against companies in the milling industry and manufacturers of confectionery products, household porcelain and drugstore products. Moreover, the FCO introduced revised fining guidelines providing for more legal certainty by clarifying how it will punish serious cartel law violations and on which criteria it will base the setting of fines.
Competition issues concerning e-commerce in wide sectors of the economy are increasingly coming into the focus of the FCO's work. In 2013, the FCO concluded its proceedings against HRS with the prohibition of online hotel portal’s most favoured customer clauses (see our article above).
The FCO also pointed out that it closely cooperates with the European competition authorities and the European Commission. Lastly, Andreas Mundt, president of the FCO, was elected as Chairman of the International Competition Network.