The BkartA has reiterated its views on the oligopolistic nature of the German mineral oil sector. It maintained that the vertically integrated mineral oil companies Shell, BP ('Aral'), ConocoPhilipps ('Jet') and Total form a dominant oligopoly on the regional market for petrol stations in Germany, despite the Düsseldorf Higher Regional Court rejecting the BKartA's assessment of the matter. With its fuel sector inquiry being close to conclusion, the BKartA has signalled to companies in the sector that it remains critical of any mergers and the conduct of companies in this area.
In April 2009, the BKartA had formed the view that a dominant oligopoly existed between the aforementioned mineral oil companies on the regional market for petrol stations. Consequently the BKartA prohibited plans by Total to acquire 59 East German petrol stations owned by the Austrian company OMV.
The undertakings concerned brought proceedings against the BKartA's decision in the Düsseldorf Higher Regional Court. The Court rejected the BKartA's assessment on grounds that there was substantial competition on the market and that the mineral oil companies did not hold a paramount market position in relation to their competitors. With this ruling the court reversed the BKartA's prohibition of April 2009. A final decision in the matter has yet to be taken by the Federal Court of Justice. However, given the OMV petrol stations have been sold to ORLEN Deutschland (part of the Polish group ORLEN) in the meantime, it remains to be seen whether the Federal Court of Justice will decide in the matter.
In similar proceedings, the Shell Group had to considerably amend its original plans to purchase the Edeka petrol stations. Shell will now only acquire considerably fewer petrol stations by reference to the volume of fuel sold. This project is envisaged to be cleared in its amended form by the BKartA.
The BKartA however remains firm on its view of the market, and its finding of an oligopoly. Based on findings from its ongoing fuel sector inquiry as well as "numerous comments which the authority receives daily from medium-sized petrol station operators and the general public", the BKartA has chosen to uphold its original assessment of April 2009.
The results of the BKartA's fuel sector enquiry are expected at the end of January 2011. The Interim Report of June 2009 focused on the structure of the fuel sector and established the existence of an oligopoly. Investigations have since shifted in focus with the BKartA now focussing on the issue of price gaps (which, according to the BKartA's press release, were "maintained to the detriment of medium-sized petrol station operators"), as well as the competition issues raised by agency or brand partnership agreements, fuel and service cards and the competitive situation at motorway petrol stations. In addition, the BKartA has made it known that it will apply "very elaborate quantitative examination methods" to examine prices at petrol stations in the four regional markets of Hamburg, Cologne, Munich and Leipzig. From this data it hopes to obtain valid information on the specific price-setting patterns used. All this will presumably lead to a better assessment of competition in the mineral oil sector.
However, as the BKartA must now be close to finalising the fuel sector inquiry report (expected in late January 2011), it would be surprising if the report contradicted the BKartA's finding of oligopoly which it has just confirmed this week.
To view Community Week, Issue 501; 10th December 2010 in full, Click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.