Protecting consumer rights
What does the Bundeskartellamt do to protect consumers?
Sector inquiries
The Bundeskartellamt can launch a sector inquiry if there are reasonable grounds to suspect that consumer protection laws, such as the Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG), have been seriously violated. Such an inquiry can be launched to protect consumers if the authority suspects that substantial, permanent or repeated infringements of consumer protection laws will harm a large number of consumers. The Bundeskartellamt has already conducted sector inquiries in the field of competition law for several years. Sector inquiries are not proceedings against specific companies but take a look at a sector as a whole. The Bundeskartellamt’s sector inquiries into consumer protection issues focus on developments which affect the everyday digital lives of consumers. With these new powers the Bundeskartellamt can identify problems and provide recommendations for action.
Amicus curiae – friend of the court
As an amicus curiae (“friend of the court”), the Bundeskartellamt can now also access court files and provide statements from an objective point of view in certain consumer law proceedings, as is already the case in competition law proceedings (Section 90(6) GWB). This role makes it easier for the authority to gain an overview of the legal issues which are raised in the courts and the areas in which there are enforcement deficits. The Bundeskartellamt can only act as an amicus curiae in consumer law proceedings that involve matters of public interest, and only in a limited number of selected cases.
Enforcing consumer rights
In Germany economic consumer protection is mainly enforced in civil actions. Consumers can turn to qualified institutions, associations and chambers of industry and commerce for help, which can issue warnings to companies if they are in violation of the law and, if necessary, in a second stage bring the matter before the courts. Organisations which have taken such action are, for example, the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband, www.vzbv.de), the consumer organisations of the Länder and the Centre for Protection against Unfair Competition (Wettbewerbszentrale, www.wettbewerbszentrale.de).
There is no general public enforcement of economic consumer protection in Germany. However, certain federal authorities have been granted specific powers of intervention at national level, for example the Federal Network Agency, Federal Financial Supervisory Authority, Federal Railway Authority and Federal Aviation Office. Beyond the regulatory competences granted to the authorities, the Federal Ministry of Justice has powers of intervention only in cases of cross-border consumer law violations which are the subject of an international law enforcement request.
German law thus follows a special path, because jurisdictions in many other countries have a general consumer protection authority. In many cases, the responsibilities for consumer protection and the protection of competition lie in the hands of the same authority (for example in the Netherlands, France, United Kingdom and Australia). In fact, the protection of competition and consumer protection generally move along the same lines. Consumers benefit from open markets and, conversely, it is in the interest of law-abiding businesses to comply with consumer protection laws.
Outlook: More powers under consumer protection law
In the context of the planned 12th amendment to the German Competition Act, there is discussion about strengthening the public enforcement of consumer protection law and giving the Bundeskartellamt additional decision-making competences and powers to impose punitive measures. According to the federal government’s coalition agreement, it is to be examined how the Bundeskartellamt can be given the power, in analogy to its powers under the GWB, to investigate and put an end to substantial, permanent and repeated infringements of economic consumer law. What academics and practitioners have identified as deficiencies of private consumer law enforcement in Germany (which could, in fact, be remedied by making it possible for public authorities to intervene) are above all difficulties in obtaining evidence in the absence of investigative powers and the low impact of court decisions in individual cases. These deficiencies are manifested in everyday digital life where a single breach of law can harm a very large number of consumers.
