Working Group on Competition Law met to discuss national abuse control and relative market power in the European context

On 26 September 2024 the Working Group on Competition Law met in Bonn at the invitation of the Bundeskartellamt. More than 100 competition experts joined the discussion and exchange of views on the topic “National abuse control and relative market power in the European context”.

The Working Group on Competition Law is made up of a large number of university professors from law and economics faculties, high-ranking representatives of national and European competition authorities and ministries, as well as judges from the antitrust divisions of the Düsseldorf Higher Regional Court and the Federal Court of Justice. For more than 50 years the group has met annually to discuss fundamental issues of competition policy.

The meeting was chaired by Prof. Dr Konrad Ost, Vice President of the Bundeskartellamt.

At this year’s meeting the Working Group on Competition Law discussed the relationship between national and European abuse control. Like all competition authorities in Europe, the Bundeskartellamt also always applies EU competition law alongside the relevant national laws in cases where trade between Member States is affected. However, there are some differences between national laws and EU competition rules. How to deal with these differences is laid down in the regulation on the implementation of EU competition rules for the prohibition of anti-competitive agreements and abuse control (Regulation 1/2003). The EU Commission has recently concluded an evaluation of the regulation.

A major point of discussion was the question of what significance stricter national (abuse control) laws have in relation to EU law and whether it should remain possible for Member States to adopt stricter laws. Member States are currently not allowed to adopt stricter national laws relating to the prohibition of anti-competitive agreements and concerted practices; however, they are allowed to adopt stricter national laws relating to abuse control, that is unilateral conduct. For example, under German competition law, abuse control rules can also be applied to companies which are not dominant but on which other companies are dependent (this is referred to as relative market power). This may be the case, for example, if a large supermarket chain demands special discounts from its suppliers without objective justification. Specifically in this area, the Bundeskartellamt can look back on a long-standing case practice which has been confirmed by the Federal Court of Justice.  

Prof. Dr Ost: “Allowing Member States to adopt national laws that are stricter than European competition law is an approach which has proved successful. It enables us to take earlier and more effective action against certain anti-competitive practices in a way that would not be possible under European law. In the same way, this benefits companies wishing to take civil action against other companies engaging in abusive practices. This may concern, for example, cases where a company with market power below the market dominance threshold exploits a relationship of dependence. It is only thanks to stricter national laws that we can intervene to stop practices which could otherwise irreparably harm competition.”

In his introductory statement, Prof. Dr Wolfgang Kirchhoff, presiding judge at the Cartel Panel of the Federal Court of Justice, emphasized how significant the control of relative market power is for maintaining open markets in Germany, especially through private antitrust enforcement. In his view, Section 19a of the German Competition Act (GWB), which is intended to make abuse control of large digital companies easier for the Bundeskartellamt, has a fairly wide scope of application alongside European law.

Silke Hossenfelder, head of the Bundeskartellamt’s General Policy Division, then moderated a panel discussion in which Prof. Dr Florian Bien (University of Würzburg) and Prof. Dr Oliver Budzinski (TU Ilmenau) shared their legal and economic assessments of the concept of relative market power. A comparative law perspective was provided by Prof. Dr Peter Picht (University of Zurich), who gave an overview of the Swiss rules on relative market power. Before the lunch break, Anna Vernet, Deputy Head of Unit at the European Commission, presented the results of the Commission’s evaluation of Regulation 1/2003 which had recently been concluded. Finally, Prof. Dr Thomas Ackermann outlined a framework for a reform of the regulation.

The working paper which formed the basis for the discussion and the contributions of individual conference participants (in German only) can be found on the Bundeskartellamt’s website (link).