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
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