The FCO published its activity report for 2017/2018 and its annual report of 2018 on 27 June 2019. The activity report (the "Report") sums up the key activities and goals pursued by the FCO over the last two years. In particular, the highly publicised investigation of Facebook's data collection scheme and the ongoing investigation of Amazon in relation to its business terms for dealers indicate that the FCO is tackling issues posed by the digital age head-on.
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- The focus of the FCO is clearly on the digital economy (e.g. Amazon and Facebook) and on the protection of consumer rights.
- 1,300 planned mergers were reported to the FCO in 2018.
- The number of leniency applications is decreasing slightly (2017 - 37; 2018 - 25), but the FCO stressed the importance of the leniency regime, especially for cartel investigations.
- During 2017/2018 18 dawn raids were conducted (2017 - 11; 2018 - 7).
- In 2017, the FCO issued fines against companies and individuals in the amount of €66.4 million and, in 2018, of €376 million for the use of illegal cartel agreements.
- The FCO is continuing its collaboration with the French competition authority.
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A clear digital agenda: On 27 June 2019, Andreas Mundt, the President of the FCO, declared: "We have a clear digital agenda". This digital agenda pursues two main goals: open markets for competitors and the protection of consumer rights. In 2017, the legislator granted the FCO, as part of the ninth ARC amendment, further powers in the field of consumer protection, albeit the FCO notes that it does not have sufficient competencies to enforce the ARC.
The Facebook investigation: Following three years of investigation, on 6 February 2019, the FCO announced its decision against Facebook in relation to consumer data rights. Facebook appealed against this decision, and a final judgment by the Higher Regional Court in Düsseldorf is expected later this year. More recently, the FCO's enforcement focus has been accompanied by the German Federal Office for Justice issuing a fine against Facebook of €2 million for violating the German Enforcement Act (aiming to prevent hate speech and illegal content in online networks) based on poor reporting by Facebook (published on 2 July 2019). Consumer protection is becoming considerably more important for German authorities.
Amazon Marketplace: The Report notes that the investigation of the Amazon Marketplace terms of business for dealers (initiated by a large number of complaints from these dealers) continues. The special feature of the Amazon investigation results from the hybrid role of Amazon as a platform for dealers on the one hand and its role as dealer in its own right on the other hand. The investigation is more about opening markets, rather than focusing on consumer protection. The in-depth analysis of the online advertising sector is ongoing.
German-French collaboration: The FCO and its French sister authority ("Autorité de la Concurrence") are currently working on a paper concerning the significance of algorithms in competition law. They previously jointly drafted a paper on "Competition law and Data", which was published in 2016.
Other enforcement: The Report also mentions the following developments in German competition law and various enforcement statistics:
- the decision handed down by the German Federal Court in the EDEKA Hochzeitsrabatte ("wedding discounts") case;
- the efficacy of the ninth ARC amendment in closing the "sausage loophole"/"Wurstlücke";
- that 1,300 mergers were reported to the FCO in 2018. Of these, the FCO opened 13 in-depth investigations (four were cleared, four withdrew their notifications and five are to be concluded at the time of writing); and
- that 22 companies were issued fines in 2018, with fines totalling €384 million (€2 million against individuals). The largest of these fines was levied against a cartel of stainless steel manufacturers (€205 million).
With thanks to Ansgar Hoffmann of Ashurst for his contribution.
