On 15 September 2011, the Higher Social Court in Darmstadt gave
judgment on an annulment action brought by a statutory sickness
fund against a request for information issued by the German Federal
Cartel Office (FCO). The FCO's request related to an increase
of monthly contributions for the fund's members, which had been
announced in a common press release issued by eight statutory
In its judgment, the Court found the FCO's request to be
unlawful. First, the Court found that the request constituted an
infringement of the fund's autonomy as provided for in the
German Social Security Code (SGB), which foresees the coordination
between statutory sickness funds with regard to the autonomous
collection of contributions. Secondly, the Court did not see a
legal basis for the FCO's request. It reasoned that the FCO was
not competent because the exclusive competence for legal
supervision of statutory sickness funds lies with the German
Federal Insurance Agency, as laid down in the SGB. While the SGB
contains provisions on the applicability of the German Act Against
Restraints of Competition (GWB) regarding the activities of
statutory sickness funds on the demand side, it does not contain
such provisions regarding their activities on the supply side. The
Court elaborated further that, even if German competition law were
applicable, the FCO's request would have been unlawful as the
funds did not act as undertakings within the meaning of Article 1
GWB, the German equivalent to Article 101 TFEU. Referring to the
Court of Justice's judgment in AOK-Bundesverband, the
court argued that the fund's activities on the supply side did
not constitute an economic activity. The Court rejected the
existence of an economic purpose because the statutory funds were
fulfilling an exclusively social function since they are all bound
by law to provide the same standard services. Therefore, the
fund's activities on the supply side in competition for new
members were found to be of a public law nature.
The recent decision stokes the debate concerning the
relationship between the SGB and the GWB in general and concerning
the health care sector's exposure to competition law review in
particular (see also VBB on Competition Law, Volume 2011, No. 6,
Volume 2007, No. 6 and Volume 2008, No. 2. available at
The newspaper Frankfurter Allgemeine Zeitung reported
in an article dated 21 November 2011 that FCO President Mundt has
declared in response to the judgment that the FCO will immediately
stop any merger control proceedings with regard to statutory
sickness funds. Reportedly, he also recommended to the German
government to close the loophole in the law in the upcoming
revision of the GWB.
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