I OVERVIEW

i Prioritisation and resource allocation of enforcement authorities

As in previous years, a major focal point of the German Federal Cartel Office (FCO) was on digitalisation, business done through the internet and their effects on competition and competition law. The FCO has committed significant resources to this area, and actively contributes to the development of policy and administrative practice in this area. Following a traditional approach that focuses on market structures, Andreas Mundt, the President of the FCO, has repeatedly stressed the need to preserve opportunities for small retailers to be visibly active on the internet.2 Continuing a number of proceedings concerning online trade in its administrative practice and before the German courts, the FCO also pursued its investigation into Facebook for a possible abuse of dominance resulting from a potential breach of German data protection rules. It also launched a sector enquiry into market conditions in the online advertising sector.3

ii Enforcement agenda
Cartels

Cartels very much remain at the top of the FCO’s enforcement agenda. The low level of fines imposed in 2017 should not be taken to mean that the authority has lost interest in these types of cases. As Andreas Mundt put it, ‘this does not mean that the intensity of cartel prosecution has diminished. The number of proceedings initiated, companies involved and leniency applications received show that cartel prosecution remains a key area of focus of our work.’4

Merger review

The FCO does not enjoy the same freedom to choose which cases are notified. It had to deal with approximately 1,300 notifications submitted in 2017 – another increase of nearly 10 per cent against 2016. However, it did judiciously open in-depth investigations only in cases that raised real concerns. In 2017, this happened in only 10 cases, leading to one prohibition decision; four projects were abandoned in the course of the in-depth investigation, and two cases were unconditionally cleared. Three cases were still pending at the end of 2017.

Horizontal and vertical restrictive agreements

The FCO’s focus on the food retail sector resulted in draft guidelines on vertical price maintenance issues. The internet economy continued to rate highly on the FCO’s enforcement agenda. The sector enquiry into online advertising aims to establish a factual basis for future enforcement action;5 the case against Audible and Apple could be closed after the parties decided to abandon their exclusive relationship, and the FCO won an important victory before the Federal Supreme Court in relation to per se bans on the use of price comparison websites.

Dominance

The internet continued to play a leading role in one of the most publicly visible enforcement matters the FCO opened recently: an investigation into terms and conditions used by Facebook to establish whether these breached German data protection rules and whether such a breach – if established – could be considered an abuse of what might be a dominant position in a market for social networks.

II CARTELS

i Significant cases

A particularly significant decision was a judgment of the Higher Regional Court of Dusseldorf concerning a vertical price maintenance case against drugstore chain Rossman, which had initially been fined €5.25 million for coordinating resale prices and exchanging competitively sensitive information with Melitta. Raising the fine to €30 million, the Court relied on the fact that the infringement concerned an important consumer product and that the vertical agreement clearly had horizontal implications: Rossman had promised not to indulge in price wars if the manufacturer managed retail pricing.6 The decision sends a strong signal to companies affected by antitrust investigations: where the FCO determines fines based on affected turnover, the court will follow a broader approach where fines are determined as a percentage of the overall turnover of the ‘undertaking’ (which, under German law, includes affiliated companies).

Auto parts appeared on the FCO’s list of cases closed when it imposed fines amounting to €9.6 million on three manufacturers of heat shields and their representatives for agreeing to pass on increased raw material prices to their customer, Volkswagen.7

The FCO fined two manufacturers of industrial batteries a total of €28 million for agreeing to levy a ‘lead surcharge’ as a key price component of lead batteries. The FCO did not object to the instrument of such a surcharge but to the coordination of its introduction. The authority also explicitly found that the companies had not agreed on how the surcharge was to be calculated or what the level of the surcharge should be.8

The FCO terminated proceedings against three further companies involved in the Sausage cartel.9 The companies were subject to corporate restructuring measures that resulted in the dissolution of the addressees of the FCO decision. The result was that claims for payment of the €110 million fine could no longer be asserted. Against this background, the FCO had to close the proceedings. Of the €338 million in fines originally imposed by the FCO in this matter, a total of almost €240 million was lost through corporate restructurings that made use of the fact that under German law it is difficult to pierce the ‘corporate veil’. However, the German legislator has been willing to toss legal principles overboard and close what had come to be called the ‘sausage gap’, introducing a far-reaching general group-wide responsibility for cartel infringements.

ii Trends, developments and strategies

As in previous years, the enforcement activity of the FCO in 2017 again illustrates the importance of leniency applications and other ‘tip-offs’ to uncover competition law infringements. Furthermore, the trend to reach settlements with the undertakings involved in a cartel remains unbroken.

iii Outlook

Irrespective of the lower total of fines imposed in 2017, anti-cartel enforcement will remain a key area of the FCO’s activity throughout 2018. The FCO claims to have received valuable information on infringements through leniency applications and by other means, for example via the anonymous whistle-blower system on the FCO’s website.

III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE

i Significant cases
Horizontal agreements

Continuing its focus on the food sector, the FCO did not raise any objections against the planned cooperation between a number of medium-sized food retailers in the areas of purchasing, e-commerce, logistics and administration. The authority pointed out that the joint venture accounted for less than 15 per cent of purchases and would allow the participants – which faced the four dominant players, EDEKA, Rewe, Schwarz and Aldi – to compete more effectively.10

The authority also did not raise any objections against plans of Tierwohl animal welfare initiative, for the poultry meat sector, but called for the introduction of an identification system in the pig meat sector for the benefit of consumers. The FCO thought competition law should not stand in the way of measures aimed at animal welfare even if they involved a coordination of parameters of competition. However, the authority also thought that consumers must benefit from such measures by being able to tell from a label whether a piece of meat was produced subject to animal welfare criteria.11

The FCO cleared a cooperation between food retailer EDEKA and drugstore operator Budnikowsky concerning the joint purchasing of drugstore products and the acquisition of a minority participation in Budnikowsky (which was considered to give EDEKA competitively significant influence over Budnikowsky and thus triggered parallel merger control proceedings). The FCO cleared the venture, pointing out that together the two players accounted for less than 15 per cent of drugstore demand, that regional player Budnikowsky was subject to intense competition from national players dm and Rossmann, that the range of drugstore products carried by EDEKA was limited and that the cooperation would allow Budnikowsky to compete more effectively.12

Financial services featured again in the work of the FCO: in 2017, it assessed the proposed addition of a new payment function to the online payment system ‘paydirekt’ (a joint venture of leading private banks, cooperative banks and savings associations) that will allow customers to transfer small amounts of money from one mobile phone to another. The FCO relied on the existence of a number of other providers of similar payment systems (including PayPal, FinTechs (such as Lendstar, Cringle or Tabbt) and the savings bank group (Kwitt) and the cooperative banks) to conclude that the venture was of a pro-competitive nature.13

Vertical restrictions

In the online space, the Federal Supreme Court held that a per se ban of price comparison sites obviously constituted a core restriction within the meaning of Article 4 Letter c of Regulation No. 330/2010 that excluded an exemption. It thus decided that an appeal against a decision by the Higher Regional Court in Dusseldorf (which had confirmed the FCO’s approach) was not admissible.14

The FCO was able to close an investigation into reciprocal exclusivity clauses in audiobook agreements between Audible and Apple. These clauses required Apple to purchase digital audiobooks exclusively from Audible and obliged Audible not to supply audiobooks to any other digital music platforms. The FCO thought this foreclosed smaller suppliers of audiobooks. Apple and Audible agreed to abandon their exclusivity arrangements and the investigation was closed.15

In early 2018, the FCO closed a sample investigation it had conducted against the purchasing conditions for raw milk of Deutsche Milchkontor eG, Germany’s largest dairy. Long-term exclusive supply agreements locked farmers into the relationship with a single customer whose ability to unilaterally retroactively set prices could lead to market foreclosure. While the changes DMK made to its agreements did not completely remove the FCO’s concerns, they were considered an encouraging first step in the right direction and sufficient to close its investigation for the time being.16

The FCO’s vertical enforcement activities in 2017 continued to focus on resale price maintenance (RPM), with the authority fining Wellensteyn (a clothing manufacturer) and Peek & Cloppenburg a total of €10.9 million for RPM activities, such as setting minimum sales prices and preventing (cheaper) online sales; unlike other RPM cases, the retailer in this instance received a fine as well, with the FCO pointing out that it had not only accepted the scheme but had actively asked the manufacturer to enforce it against other retailers.17 In addition, it is interesting to note that in such vertical matters, the FCO is also willing to reduce the fine if the companies involved in the infringement agree to settle the matter. This is similar to the decision not to fine AB Inbev and one retailer investigated for RPM practices in the food sector. Such waivers are not granted under the leniency guidelines – these only apply in horizontal cases – but as part of the FCO’s discretion.18

Following the conclusion of its probe into the food sector and a public consultation launched in January 2017, the FCO published a guidance note19 meant to explain the background, objective and scope of the price-fixing prohibition, providing practical advice on, inter alia, fixed and minimum prices, recommended resale prices, volume management and planning of promotions as well as exchange of data between retailers and suppliers.

Abuse of dominance

The FCO continued to pursue proceedings against Facebook (opened in February 2016), investigating whether specific terms of service on the use of data (to which users must agree upfront but that the FCO suspects may breach German data protection rules) constitute an abuse of an alleged dominant position in the market for social networks. The investigation now focuses on the collection and use of user data from third-party sources, including other Facebook services such as WhatsApp and Instagram, as well as websites and apps of other operators with embedded Facebook APIs that transmit to Facebook where it is collected and processed even when a Facebook user has not taken any Facebook-related action on this site. Users, the FCO believes, are unaware of this, and have not given their effective consent to Facebook’s data tracking and the merging of data into their Facebook account. The FCO has come to the preliminary conclusion that Facebook’s behaviour is inappropriate and violates data protection provisions to the disadvantage of its users.20

The FCO objected to a demand by furniture retailer XXXLutz that conditions it enjoyed should also retroactively be applied to purchases made by another retailer it had acquired; the FCO believes that these ‘wedding rebates’ show the dependency of suppliers on the retailer. XXXLutz decided to abandon its demands and the case was closed.21 Almost at the same time, the German Supreme Court confirmed the FCO’s decision against EDEKA’s wedding rebates in key areas: a misuse of market power existed where the retailer demanded the adjustment of only specific conditions that were favourable, a general application of payment terms of the target to those of the acquirer was demanded, or the retailer demands that suppliers contribute to the refurbishment of the acquired stores.22

The FCO prohibited exclusivity arrangements between CTS Eventim and organisers of live entertainment events and advance booking offices. It found that CTS Eventim had a dominant position on this market and that such exclusivity arrangements could foreclose other ticketing systems. Indirect network effects, the FCO thought, strengthened its market position. To remedy the competition concerns, the FCO required CTS to allow its contract partners to sell at least 20 per cent of their annual ticket volume via third-party ticketing systems.23 This decision arose within the context of the review of a merger of CTS Eventim and Four Artists, which the FCO blocked.24

Sports continue to be an important element of the FCO’s enforcement practice: the authority investigated provisions of the charter of the International Olympic Committee (IOC) according to which athletes may not use their person, name, picture or sports performances during the Olympic Games for advertising purposes. The authority found these to be restrictive and the IOC to be dominant. It objected to the fact that ‘the athletes as the performers in the Olympic Games do not benefit directly from the very high advertising revenues generated by the official Olympic sponsors’. The IOC agreed to modify these provisions as they applied to Germany, giving more freedom to athletes to market themselves. These commitments are currently being market tested.25

The FCO closed its probe into the sale of tickets by the German Football Association after it agreed to ease these restrictions regarding the purchase of tickets to the World Cup 2018 by introducing a more limited tournament membership.26

The FCO concluded its investigation of excessive pricing allegations between 2010 and 2012 against a number of district heating companies in early 2017, reaching commitments with five of the nine companies that were initially targeted. These commitments concerned retroactive price reductions. The FCO was glad to be able to settle these cases, given how difficult it was to identify excessive prices and how a settlement would avoid lengthy disputes with the companies.27

ii Trends, developments and strategies

The digital economy, in particular discrimination in online sales and RPM, is expected to remain high on the FCO’s enforcement agenda. The same applies for the food retail sector. According to Andreas Mundt: ‘[t]he food retail sector will continue to occupy the [FCO] in future. As concentration increases at the retail level, complaints by manufacturers about the market power of the retailers are unlikely to diminish.’28

iii Outlook

In the Facebook investigation, the FCO is entering uncharted legal waters when considering whether to use competition law to enforce data protection rules. Authorities in other EU jurisdictions are closely following the matter, and it will be interesting to see whether this is the beginning of a new trend.

IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES

i Significant cases

In February 2018, the FCO opened a sector inquiry into the online advertising sector.29 Pointing to the growth of the sector and its economic relevance for advertisers and content providers active on the internet, the authority feels a need to better understand the highly technical nature of this business, the possible access to and processing of data, and the role played by large companies ‘with considerable market relevance’ that other players claim have been able to set up closed systems (also referred to as ‘walled gardens’).

The FCO also launched a sector inquiry into smart TVs, having realised that modern television sets have capabilities that go beyond transmitting information to consumers. The inquiry aims to clarify if and to what extent smart TV manufacturers collect, pass on and commercially use personal data, and whether consumers are being appropriately informed. The focus goes beyond potential competition issues: the survey aims to reveal potential weaknesses in general terms and conditions, data protection and data safety to identify consumer protection issues in the Internet of Things.30

The FCO has also launched an inquiry into online price comparison websites in the areas of travel, insurance, financial services, telecommunications and energy. It aims to find out whether consumers can count on their reliability, objectivity and transparency, and to improve existing possibilities to identify and assess possible violations of the law. This is one of the first instances where the FCO moves beyond its traditional remit of competition law by applying its newly gained investigative powers in the area of consumer protection.31

The FCO also closed several sector inquiries in 2017.

The FCO published the final report on the cement and ready-mix concrete sector. Its findings may not come as a surprise to anyone who has ever looked at the industry:

  1. market structural features that include a highly degree of concentration;
  2. a small number of suppliers;
  3. links between suppliers; and
  4. a high degree of market transparency in stable markets for homogeneous bulk goods that are not subject to major innovation.

These conditions have a dampening effect on competition and encourage parallel conduct. As in the rolled asphalt industry,32 the authority is concerned with cross-company linkages as well as market information systems. It has already convinced participants to dissolve 24 joint ventures and is investigating a further 60.33 It also acts to decrease market transparency, in particular voicing concerns over generic letters to customers announcing price increases.34

The FCO concluded its inquiry into the sub-metering market: it also did not produce any surprising results, finding that the market was concentrated (with the two biggest providers, Techem and ista, accounting for nearly 50 per cent of the market), that contracts had a long duration (due largely to calibration periods for meters) and that customers (owners of housing units) were not price-sensitive (because the costs are passed on to tenants). The FCO threatened investigations into specific practices that might foreclose the market and recommending helpful measures that would increase competitiveness (e.g., harmonising calibration periods for meters). Probably the most important message was not spelled out: that a combination of Techem and ista35 would meet serious objections from the authority.

ii Trends, developments and strategies

In February 2017, the FCO published its third annual report on the Market Transparency Unit for Fuels.36 The report notes significant price changes during the course of each day – average prices within one city fluctuating by up to €0.3 per litre – and changes in fuel prices basically correlating with price developments on the crude oil market.

iii Outlook

In the area of consumer protection, new legislation gives the FCO limited additional powers.

V MERGER REVIEW

i Significant cases

In 2017, the FCO opened a formal investigation in only 10 out of approximately 1,300 concentrations that were notified to it. Thus, more than 99 per cent of cases are cleared during the preliminary investigation. This shows how wide the net the FCO is casting to catch a very limited number of transactions that may potentially raise competition issues, and with the addition of a non-turnover related threshold, the net has become even wider.

The most recent example of a proposed transaction that was abandoned following the FCO’s statement of objections concerned the proposed combination of the horticultural supply centres of RWZ (an agricultural cooperative) and Landgard (another agricultural cooperative). The FCO concluded that the transaction would result in market shares of up to 50 per cent on regional markets for plant pots and packaging used in the horticultural industry, and for the entire range of horticultural supplies. Direct purchases from manufacturers or from online distributors did not constitute a viable alternative source of supply.37

One important decision on the effect of a minority participation concerned the acquisition of shares by ENBW in MVV – two regional utilities in South Western Germany – that took ENBW’s shareholding from 22.48 to 28.76 per cent. The FCO acknowledged that a blocking minority of more than 25 per cent did not give ENBW a substantial influence over the competitive positioning of MVV, which was under the sole control of the city of Mannheim (a municipality rather than a utility, but apparently with sufficient know-how to determine the competitive positioning of MVV); thus, the acquisition of a simple minority shareholding in a competitor could not strengthen the market position of the acquirer.38 While this case involved a crossing of the 25 per cent threshold, the same reasoning – concerning the lack of an appreciable influence over the target undertaking – should also apply to the question of whether a transaction below that threshold leads to the ‘acquisition of a competitively significant influence’ (Section 37 (1) No. 4 ARC).

The FCO did not decide whether the notified wet-lease agreement for 38 aircraft between Lufthansa and AirBerlin actually constituted a notifiable merger, noting, in particular, that these arrangements related to the aircraft rather than the airport slots and routes served by AirBerlin. It pointed out that customers and travel agents had not voiced any serious concerns in relation to the proposed agreement, and that the possibility of growing its business, which access to these planes gave Lufthansa, was insufficient reason to prohibit the transaction.39

The FCO blocked the proposed combination of CTS Eventim and Four Artists, an event organiser mainly active in Germany. The FCO held that CTS Eventim was already a considerable concert organiser as well as the operator of the largest ticketing system in Germany, with 60 to 70 per cent of tickets being sold through this organisation. Concert and tour organisers as well as advance booking offices were held to be dependent on it. The FCO also pointed at its strong market position in relation to selling tickets via its online shop, eventim.de. Acquiring Four Artists the FCO concluded would give CTS access to significant further ticket quotas, allowing it to expand its market position further. Thus, the acquisition of Four Artists was held to strengthen CTS’s dominant position in relation to other event organisers and advance booking offices on the two-sided market for ticketing services. The FCO thus concluded that the acquisition would significantly impede effective competition on the markets affected and issued a prohibition decision.40

This decision is in stark contrast to the authority’s earlier unconditional clearance of CTS Eventim’s acquisition of concert and festival organiser FKP Scorpio.41 It found that CTS Eventim enjoyed a very powerful market position, especially in ticketing services. Even given overlapping activities in the music event organisation business (and a market share of 60 per cent), the FCO concluded that the merger did not give rise to competition concerns. The authority expected market shares to shrink, and pointed to the market entry of LiveNation as providing sufficient competition.

Another transaction that was abandoned after a formal investigation was opened concerned the proposed acquisition of the Karsdorf cement plant by German rival cement producer Schwenk. According to the FCO, the transaction would not only have removed Schwenk’s closest and most active competitor in the region and increased its share of the regional market from 40 to 60 per cent; it would also have increased the likelihood of tacit collusion in a highly concentrated stable commodity market where innovation was rare, price competition was weak, and market entry or competition from imports was non-existent.42 This is one of the first cases where the FCO relied on the results of the sector investigation into cement markets43 for the assessment of a specific case.

Another transaction with regional implications – the acquisition of sanitary products wholesaler Ginger by Cordes&Graefe – met with initial resistance from the FCO: while the participants had regional operations that were largely complementary, their businesses would have overlapped in the region around Ulm. The parties withdrew the initial notification, modified the transaction so that it excluded the Ulm-based operations, re-notified the deal and obtained unconditional clearance.44

In October 2017, the FCO cleared the proposed acquisition of UAM Media by the Ströer group, which concerned a business where traditional print and digital media met. Ströer is the leading supplier of outdoor advertising services in Germany; UAM Media is focused on targeted ambient advertising (such as digital screens in restaurants, film theatres or fitness studios) as well as large format print advertising (such as large-scale posters on building sites). While significant market presence in the overall outdoor marketing space would be created, the FCO concluded that the transaction would not lead to a significant strengthening of Ströer’s market position as the (print and digital) products of the parties were complements rather than substitutes in a market that was increasingly driven by digitalisation, and UAM Media’s market position was transient given the short-term nature of many of its contracts.45

The FCO also cleared the acquisition by Japanese retailer Rakuten of the assets for the technical operation of the ‘tolino’ e-book platform operated for the booksellers Thalia, Weltbild and Hugendubel. While Rakuten already had an international e-commerce platform, it had had limited activities on the German e-book market. The transaction only concerned the operation of the platform, but the FCO also assessed its potential impact on the market for e-books, concluding that on neither this market – where Amazon is the clear leader, with others such as Apple and Google following – nor on the market for reading devices – where, again, Amazon leads the market but where other devices such as tablets and smartphones offer alternatives – would the transaction give rise to competitive issues.46

The FCO cleared the acquisition of minority participations in HERE, a provider of digital mapping databases, by Intel and a consortium of Chinese companies NavInfo and Tencent and Singapore’s GIC. HERE had been acquired by a consortium of Audi, BMW and Daimler to jointly develop mapping databases for the autonomous driving market. The FCO found that the transaction would not give rise to fears of other automobile manufacturers’ being foreclosed from access to autonomous driving technology and therefore cleared the transaction.47

In a more traditional setting, the FCO cleared the reacquisition of a number of brands – including Kraft Ketchup – by Kraft Heinz from Mondelez. The decision was of interest in particular because the FCO accepted that high-market shares in ketchup and red sauces provided Kraft Heinz with only a weak market position (several retailers had de-listed its products), and the existence of numerous other suppliers as alternative sources of supply.48

In June 2017, the FCO cleared the acquisition of Drillisch by United Internet, two virtual mobile network operators, finding that developments on the mobile telecommunications market were determined by three mobile network operators, namely DTAG, Telefónica and Vodafone.49

The FCO forced PQ Industries and Sovitec, respectively US and Belgian manufacturers of glass microspheres, to abandon their proposed transaction after sending them a draft decision that outlined how their transaction would result in a combined EEA-wide market share of 60 per cent and remove a major competitive restraint that existed while they were the only suppliers with spare capacity.50 The FCO pointed out that while the relevant product markets in Germany had a market volume of less than €15 million and thus in themselves were de minimis, it would combine the various product markets according to its ‘bundle theory’ (a move that is controversial when applied to separate product markets) so that the exemption did not apply.51 The overall transaction was abandoned, and very shortly thereafter it was announced that PQ Industries would acquire Sovitec (with the exception of Sovitec’s German business).52

ii Trends, developments and strategies

Even though there were significant discussions about the usefulness of the ministerial authorisation following the EDEKA/Kaiser’s Tengelmann case, the recent amendment to the ARC left the authorisation substantively untouched.

After CTS Eventim/FKP Scorpio, where the FCO showed a willingness to pursue a more effects-based approach to its substantive analysis of mergers, the authority in the past year has reverted to its market share-focused approach in its substantive assessments. The dominance test, including the (market share-based) presumptions in the ARC, still feature heavily in the work of the authority.

iii Outlook

The digital economy is likely to continue to be of particular interest to the FCO. The most recent amendments to the ARC extend merger control through the addition of an alternative threshold. Transactions will also need to be notified if:

  1. the combined worldwide turnover of all companies exceeds €500 million;
  2. one of the parties has a turnover in Germany of more than €25 million;
  3. neither the target nor any other undertaking concerned has a turnover in Germany of more than €5 million;
  4. the value of the consideration for the transaction exceeds €400 million; and
  5. the target is active in Germany to a considerable extent.

There is considerable uncertainty surrounding a number of elements of this new provision, in particular concerning the calculation of the value of the consideration and what constitutes domestic activities that reach a ‘ considerable extent’.

VI CONCLUSIONS

The FCO continues to be an extremely active enforcer, and is not afraid to take on cases or topics even if they are controversial or involve untested concepts. This applies in particular to the enforcement of competition law in the internet economy. In this regard, the FCO will benefit from the changes to the ARC, such as the introduction of a transaction value threshold, which will allow the review of transactions that may have a significant effect on the digital economy even though one of the undertakings concerned generates only limited turnover in Germany, the clarification that a market may also exist if services are rendered free of charge, and the consideration of certain particularly online-related criteria (e.g., network effects, access to relevant data) when assessing whether an undertaking is dominant.

1 Evelyn Niitväli and Marc Reysen are partners at RCAA.

2 See FCO press release of 21 December 2017 – ‘Bundeskartellamt – Review of 2017’ (available at http://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilungen/2017/21_12_2017_Jahresrueckblick.html?nn=3591286). The FCO’s press releases, case summaries and decisions are available at the FCO’s website: www.bundeskartellamt.de. Some are available in English.

3 See FCO press release of 1 February 2018.

4 See FCO press release of 10 January 2017.

5 See FCO press release of 1 February 2018.

6 See FCO press release of 1 March 2018.

7 See FCO press release of 13 July 2017.

8 See FCO press release of 27 June 2017.

9 See FCO press release of 19 October 2016.

10 See FCO press release of 4 April 2017.

11 See FCO press release of 28 September 2017.

12 See FCO press release of 19 May 2017.

13 See FCO press release of 12 April 2017.

14 See Federal Supreme Court, decision of 12 December 2017, KVZ 41/17 (at http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=Aktuell&Sort=12288&nr=80673&pos=25&anz=515).

15 See FCO press release of 19 January 2017.

16 See FCO press release of 9 January 2018.

17 See FCO press release of 25 July 2017.

18 See FCO press release of 15 December 2016.

19 English version available at http://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Others/Guidance_note_prohibition_vertical_price_fixing_LEH.pdf?__blob=publicationFile&v=2.

20 See FCO press release of 19 December 2017.

21 See FCO press release of 11 January 2018.

22 See Bundesgerichtshof Az KVR 3/17 of 23 January 2018 (at http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=80792&pos=0&anz=1).

23 See FCO press release of 4 December 2017.

24 See FCO press release of ۲۳ November ۲۰۱۷.

25 See FCO press release of 21 December 2017.

26 See FCO press release of 1 December 2017.

27 See FCO press release of 14 February 2017.

28 See FCO press release of 10 January 2017.

29 See FCO press release of 1 February 2018.

30 See FCO press release of 13 December 2017.

31 See FCO press release of 24 October 2017.

32 See FCO press release of July 2015.

33 To illustrate the approach of the FCO in such matters, see their report concerning links in the rolled asphalt industry published in July 2015 (available in German at http://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Sektoruntersuchungen/Sektoruntersuchung_Walzasphalt_Bericht_Entflechtungen.pdf?__blob=publicationFile&v=3)

34 See press release of 24 July 2017.

35 ista was subsequently sold to a Chinese investor; at the time of writing, Techem remains for sale (see FAZ of 24 January 2018 at http://www.faz.net/aktuell/finanzen/heizkosten-ablese-dienste-das-ungerechte-
milliardengeschaeft-15415418.html).

36 See FCO press release of 9 February 2016.

37 See FCO press release of 23 February 2018.

38 See FCO press release of 14 December 2017.

39 See FCO press release of 30 January 2017.

40 See FCO press release of 23 November 2017.

41 See FCO decision of 3 January 2017, case B 6 – 53/16, CTS Eventim AG & Co KGaA/FKP Scorpio Konzertproduktionen GmbH.

42 See FCO press release of 16 November 2017.

43 See the final report of 24 July 2017 at http://www.bundeskartellamt.de/SharedDocs/Publikation/DE/
Sektoruntersuchungen/Sektoruntersuchung%20Zement%20und%20Transportbeton.pdf?__blob=
publicationFile&v=4

44 See FCO press release of 16 March 2017.

45 See FCO press release of 16 October 2017.

46 See FCO press release of 20 January 2017.

47 See FCO press release of 24 January 2017.

48 See FCO press release of 16 October 2017.

49 See FCO press release of 9 June 2017.

50 See FCO press release of 13 June 2017.

51 See FCO case note (in German only) available at http://www.bundeskartellamt.de/SharedDocs/Entscheidung/DE/Fallberichte/Fusionskontrolle/2017/B1-34-17.pdf?__blob=publicationFile&v=3.

52 See http://www.sovitec.com/en/news/pq-corporation-acquires-belgium%E2%80%99s-sovitec-mondial-sa.