The Monopolies Commission calls for statutory health insurance funds to be subject, in principle, to general competition law. This applies both to the relationships between the health insurance funds and hospitals, doctors and other service providers, and to their relationships with their members. Furthermore, mergers between health insurance funds should also be subject to merger control. Exceptions to the application of general competition law must be explicitly specified and limited to areas in which the health insurance funds are obliged to act collectively on the basis of their public service mandate. The Monopolies Commission has submitted a corresponding legislative proposal.
In the long term, the regulation of charges in the drinking water supply sector must be subject to sector-specific regulation by the Federal Network Agency in order to effectively prevent consumers from being burdened by abusively inflated charges. Pending the implementation of this requirement, the competition authorities should exercise the special abuse control powers under Section 31 of the draft bill. Irrespective of whether sector-specific regulation or specific abuse supervision under the Act against Restraints of Competition (GWB) is applied, it must be enshrined in law that all water charges are subject to competition law, regardless of whether they are levied in the form of fees or as prices. Only in this way can it be prevented that local authorities evade effective control of their water charges by ‘resorting to charges legislation’.
Antitrust administrative offence law currently has serious gaps regarding legal succession in relation to liability for fines, which mean that companies can evade administrative fines relatively easily. This may even apply to two companies involved in a cartel that merge with one another. The Monopolies Commission therefore calls on the Federal Government to introduce appropriate legislation governing both general and individual succession.
The validity of Section 29 of the Act against Restraints of Competition (GWB), which establishes specific supervision of abuse in energy markets, should not be extended – as planned. The provision hinders the development of competition by reducing opportunities for market entry and slowing down the switch of customers from established suppliers to new providers. Potential competition issues in electricity generation or gas imports cannot, in any case, be resolved by regulating the retail markets for electricity and gas.
Furthermore, the Monopolies Commission supports the planned adoption of the European prohibition criterion (SIEC test) into German merger control. The switch from the market dominance test to the SIEC test will facilitate the incorporation of new economic insights into competition law assessments and enable the unambiguous and flexible identification of all mergers that may restrict competition.
By contrast, the Monopolies Commission rejects the incorporation into German law of a case-by-case efficiency defence modelled on the European approach. Efficiency gains and other positive effects of mergers can, to some extent, already be taken into account under current German law. The high costs and the limited associated benefits argue against a more extensive, case-by-case efficiency assessment.
The proposals on press merger control are, taken as a whole, justifiable from a competition policy perspective. Whilst lowering the so-called press calculation clause from 20 to 8 will significantly reduce the number of proposed mergers subject to regulatory scrutiny, This will make press mergers between small publishers easier. As the application of the so-called ‘follow-up clause’ will continue to be excluded in future, this prevents large publishers from gaining additional opportunities to form nationwide newspaper chains. The Monopolies Commission therefore welcomes the fact that the ‘follow-on clause’ will continue not to apply to press mergers.
The Monopolies Commission views the proposed revision of the regulations on general abuse control favourably. This will make the regulatory framework clearer and more comprehensible. The Monopolies Commission once again calls for the abolition of the ban on selling below cost. In the Monopolies Commission’s view, competition problems in the petrol station market cannot be sustainably resolved by banning sales below cost either. In its view, any competition problems in the petrol station market can only be resolved by taking the refinery level into account. The Monopolies Commission therefore recommends that the Federal Cartel Office conduct a sector inquiry into this highly concentrated market.
