Throughout the past decade, the FCO has investigated potential abusive practices by dominant enterprises on several occasions. However, only in a few cases has the FCO actually adopted a formal decision based on either sections 18 et seq of the ARC or article 102 of the TFEU, with fines imposed in even fewer cases (a list of the FCO’s past dominance cases is available on the FCO’s website in German only at: www.bundeskartellamt.de/SiteGlobals/Forms/Suche/Entscheidungssuche_Formular.html;jsessionid=A980E7DC344F4F92321FAE58654279FD.2_cid371?nn=3589936&cl2Categories_Format=Entscheidungen&cl2Categories_Arbeitsbereich=Missbrauchsaufsicht&docId=3590026). Instead, the FCO has often dropped its investigations after the companies concerned have agreed to discontinue their allegedly abusive behaviour on a voluntary basis. In the same vein, the FCO has often ended proceedings by adopting commitment decisions (ie, by declaring offered commitments as binding).
The FCO’s past enforcement activity has focused in particular on the energy, retail, postal service, water, harbour service and air transport sectors. It also carried out several sectoral investigations in industries with arguably oligopolistic structures in which it suspected structural problems, including the energy, fuel and food retail sectors. Since May 2011, the FCO has published nine reports on investigations into different sectors of which seven specifically deal with (possible) abuses of market power (district heating, milk, fuel retail, wholesale fuel, food retail, ready-mixed concrete and meter-reading services). In addition, the FCO is currently conducting further investigations, for example, regarding the household waste disposal and hospital sector.
Since 2015, the FCO has in particular focused more on the digital economy and online platforms - notably in light of the recent rise in ‘online cases’, including a decision concerning an alleged abuse of dominance by Google (see the FCO’s decision in Google/VG Media, 8 September 2015), the FCO’s sector inquiry on price comparison websites, which the authority plans to conclude in 2019 (see question 26 and the FCO’s press release, 12 December 2018), the FCO’s decision against Facebook, and its ongoing proceedings against Amazon. In Facebook (see questions 2 and 22), the FCO found that Facebook enjoyed a dominant position in the German market for social media networks) which enabled it to collect and process user data beyond what is legally acceptable under EU and German data protection rules. In particular, the FCO held that requesting a user’s consent for far-reaching data collection and processing in exchange for access to Facebook’s social network was abusive and harmed users, who lost control over what personal data was collected from which sources and for which purpose. The FCO refrained from imposing a fine given the complexity of the investigation. Facebook has already appealed against the FCO’s decision. In November 2018, the FCO also initiated proceedings regarding Amazon’s terms and conditions and its behaviour in relation to the retailers using its German marketplace platform amazon.de (see question 2). Inter alia, the FCO’s activities in this respect inspired the German legislator to introduce new provisions on dominance in digital markets (see question 2).
In 2015, the FCO also found that Deutsche Post AG abused a dominant position in the provision of postal services by agreeing on letter prices and loyalty discounts with some of its largest customers that were impossible for other postal service suppliers to compete against (FCO decision in Deutsche Post AG, 2 July 2015, confirmed by the Düsseldorf Court of Appeal, judgment of 6 April 2016). The FCO found that Deutsche Post AG’s behaviour was abusive in two ways: it fulfilled the requirements of a margin squeeze (see question 18) and also constituted an illegal use of loyalty rebates (see question 14).
In 2016 and 2017, the FCO issued only a single formal prohibition decision regarding CTS Eventim’s use of exclusivity clauses. CTS Eventim - the operator of Germany’s largest ticketing system - had required organisers of live events to sell the tickets for their events exclusively via CTS Eventim’s ticketing system, while at the same time requiring ticket offices to source tickets only from the same system. In its decision, the FCO took account of CTS Eventim’s significant market share, but also applied the newly introduced criteria for the assessment of a company’s dominance on multisided platform markets under section 18(3a) of the ARC (for more details regarding the new provision, see question 2).
In addition, the FCO adopted a number of commitment decisions, inter alia concerning several district heating suppliers for charging excessive prices (the suppliers committed to reimburse their customers and to decrease their current prices, see decisions regarding Danpower and Innogy, both of 13 February 2017).
The FCO also investigated the German Football Association (DFB) for an abuse of its dominant position regarding the allocation of the German ticket quota for the 2018 soccer world cup, because the DFB intended to sell tickets only to its own members who had to pay an annual membership fee of €40. While the FCO considered that this behaviour could be justified, at least in part, by security considerations (effectively preventing ticket sales to known hooligans), the DFB, nonetheless, committed to introduce a short-time membership at a reduced fee. Against this background, the FCO dropped its investigation.
On 27 February 2019, the FCO closed its proceedings against the German Olympic Sports Confederation (Deutscher Olympischer Sportbund, DOSB) and the International Olympic Committee (IOC) regarding the advertising restrictions that they impose on athletes with a commitment decision. The FCO had initiated proceedings in 2017 because IOC and DOSB had prohibited athletes participating in the Olympic Games to use their person, name, picture or sports performances during the Olympic Games - and several days before and after the games - for advertising purposes. According to the FCO’s preliminary view, these restrictions constituted an abuse of the DOSB’s and IOC’s alleged dominant position (as the athletes - who are the performers of the games - do not profit directly from the very high advertising revenues generated by the official Olympic sponsors). Faced with this preliminary assessment, DOSB and IOC offered to loosen some of their restriction, thereby enhancing advertising opportunities for German athletes and their sponsors. The FCO accepted these proposals after market testing the proposed commitments with athletes and sponsors (see FCO’s press release of 27 February 2019).
The FCO recently investigated Lufthansa’s price increases on some routes. After the insolvency of Germany’s second biggest airline Air Berlin, Lufthansa enjoyed a monopoly position for a few months on some German domestic flight routes. The FCO’s investigation showed that Lufthansa’s tickets prices on these routes had increased by an average of 25 to 30 per cent after Air Berlin’s exit from the market. However, as these increases were only of a temporary nature and prices returned to the previous level only a few months later after easyJet’s entry into the market, the FCO did not open formal proceedings (see FCO’s press release of 29 May 2018).
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