Authored by: Till Steinvorth and Boris Marschall
Germany's Federal Cartel Office (FCO) has published two documents summarizing its activities for the public: a more detailed "Activities Report" for the years 2015 and 2016 and the high-level "Annual Report 2016." These documents confirm that the FCO continues to be a highly active operator in the area of competition law enforcement in Europe.
The 2016 enforcement statistics confirm tendencies from earlier years. In 2016, the FCO inspected 91 business premises and 5 private homes. This number is at the same level as the previous year (88 business premises and 6 homes were inspected in 2015). Yet the number of cartel proceedings completed each year has continuously decreased from seventeen in 2012 to four in 2016, and the aggregated amount of fines set by the FCO in 2016, EUR 124.6 million, is the lowest at least since 2007, far from the exceptionally high aggregated amount of EUR 1.117 billion in 2014.
Regarding mergers, the FCO received 1,229 notifications in 2016, which is still only slightly more than half of the pre-financial crisis number in 2007 and less than 1.5% increase over 2015. Just as in previous years, more than 99% of the notified transactions were cleared in phase 1. Only one transaction was cleared conditionally and not a single one was prohibited in 2016.
However, since the 9th amendment to the German competition law has come into force on 09 June 2017, the legal landscape in Germany has changed significantly and it remains to be seen how these changes will affect the FCO's enforcement priorities. Indeed, the FCO has stressed time and again that it wants to focus more on the web economy and digital platforms, and more internal resources are reported to have been dedicated to "Internet" cases. The recent legislative changes allow the FCO to scrutinize more thoroughly mergers and antitrust matters in the online world. New jurisdictional criteria based on transaction value have been introduced into the merger regime in order to control the acquisition of high-potential start-ups (see previous post at http://blogs.orrick.com/antitrust/2017/04/28/new-merger-filing-thresholds-in-germany-and-austria). The FCO's new mission of consumer protection might also provide additional legal ground for inspections and inquiries that could turn into cartel or antitrust proceedings.
As further pointed out in the annual report 2016, it is also worth noting that the liability mechanism for antitrust infringements has been amended and aligned with the EU model, so that companies can no longer avoid paying a fine by restructuring.
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