26 June 2024: Today, the President of the Bundeskartellamt, Andreas Mundt, presented the authority’s “2023/24 Annual Report”.

Andreas Mundt: “Competition is and will remain the driving force of our free market economy. Growth, prosperity and, above all, innovation depend on us keeping markets open. Transformation and positive developments in key areas of the future, such as sustainability or AI, can only succeed if companies have to compete for the best ideas under conditions of fair competition. Only in a well-functioning competitive environment can consumers enjoy good quality at reasonable prices.”

Digital economy and AI

The Bundeskartellamt is one of the world’s leading authorities when it comes to proceedings against large tech companies. In April 2024 the Federal Court of Justice confirmed in its entirety the Bundeskartellamt’s finding that Amazon is of paramount significance across markets. This is a big boost for all ongoing proceedings.

Andreas Mundt: “The power of large tech companies is still the number one issue for competition authorities around the world. The Bundeskartellamt alone is currently conducting a total of seven proceedings against Amazon, Google, Meta, Apple and Microsoft. In Europe, the Digital Markets Act came into force this year, and in the United States, the authorities have initiated important proceedings. At the same time, we are preparing ourselves for the effects of artificial intelligence on competition. There is a great risk that digital markets will become even more concentrated and that power will increase at different stages of the value chain, from chips to front end.”

Cartel prosecution

In 2023 the Bundeskartellamt imposed around 2.8 million euros in fines in the area of industrial construction services and collected 77.4 million euros from previous proceedings.

Andreas Mundt: “Cartel prosecution is now back to running at its usual efficient level. We carried out eleven dawn raids in 2023 and two more in the current year. Many potential violations are brought to our attention. In addition to our leniency programme, which remains important, modern IT allows us to systematically monitor markets and identify irregularities. Our external reporting unit for anonymous whistleblowers also plays an increasingly important role.” 

Merger control

In 2023 the Bundeskartellamt examined around 800 merger projects. Seven of these mergers were closely examined in second phase proceedings. The acquisition of parts of Royal Friesland Campina’s dairy business by the Theo Müller Group was cleared only after the parties had agreed to divest parts of the business. A takeover in the waste management sector (Veolia/Friedrich Hofmann) was also only cleared subject to conditions. One merger project relating to the manufacture and distribution of window coverings was dropped due to concerns expressed by the Bundeskartellamt (Hunter Douglas/erfal). Four of the merger projects examined in second phase proceedings were cleared.

Consumer protection

Since mid-2017 the Bundeskartellamt has not only been responsible for the protection of competition but has also had limited competences in the area of economic consumer protection, aimed at addressing possible shortcomings in the enforcement of consumer rights, particularly in the digital economy.

In June 2024 the Bundeskartellamt uncovered problems with regard to scoring in the online retail sector. Credit checks are standard practice when it comes to online shopping. They are often carried out in the background without customers being aware of this. The Bundeskartellamt identified shortcomings particularly in terms of transparency and the provision of information on the personal data used. The sector inquiry was the sixth inquiry carried out by the Bundeskartellamt under consumer protection law.

Andreas Mundt: “In our view, it is very reasonable to further strengthen the Bundeskartellamt in this area. The German government’s coalition agreement also points in this direction. Over the past few years, we have identified shortcomings in consumer law compliance in different areas, including comparison websites, online user reviews, smart TVs, mobile apps, messenger and video services and, most recently, credit scoring. For the time being, however, we can only provide information and advice; we do not have the legal power to also remedy these shortcomings.”

Energy – District heating – Price relief measures

The Bundeskartellamt is currently conducting six model proceedings against district heating providers. The authority is examining whether the so-called price adjustment clauses were used in accordance with the law.

Andreas Mundt: “When it comes to district heating, we are dealing with a traditional monopoly market. Consumers cannot respond to price increases by switching suppliers; they are “captive” customers. This makes it all the more important for legislators and regulators to provide clear, transparent rules and structures for the setting of prices. Giving competition authorities more powers and resources could go a long way in ensuring that this increasingly important area of energy supply is managed transparently and fairly.”

In early 2023 the Bundeskartellamt took over abuse control relating to the energy price relief measures for electricity, gas and district heating. Under the laws governing the energy price relief measures, suppliers were prohibited from charging consumers and industrial customers prices which would have resulted in the companies obtaining unjustified relief payments from the state.

To date, the Bundeskartellamt has initiated 70 examination proceedings in this area. The examinations relate to relief payments amounting to approximately 3.9 billion euros, which is around 14 per cent of the total 26.5 billion euros claimed by the companies. A final assessment will only be possible once the companies submit their so-called final accounts in 2025.

Competition Register for Public Procurement

The Competition Register for Public Procurement has been in full operation for more than two years now. The fully electronic register provides all public contracting authorities, sector contracting entities and concession grantors in Germany with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.

The Competition Register is one of the first fully digital registers in public administration. Interfaces are used by reporting authorities, such as public prosecution offices, customs, tax offices or competition authorities, to report relevant offences on a regular basis, and by public contracting entities to check the register, which is consulted around 1000 times a day.

The 2023/24 annual report can be downloaded from the Bundeskartellamt’s website (only in German).