Germany: Consumer protection – The new field of antitrust enforcement?

Over the last few years, consumer protection has become a policy of greater importance in the context of antitrust law, in particular for the Federal Cartel Office (‘FCO’). A legislative change in 2017 enabled the FCO to conduct sector inquiries where there is reasonable suspicion that consumer law provisions have been severely, constantly and/or repeatedly breached (see here). During the last few years, the FCO has made use of these new powers and conducted sector inquiries in the areas of online comparison websites and smart TVs. B2C business models and consumer rights have also attracted the attention of the FCO in antitrust law proceedings, as shown by the FCO’s investigation into Facebook, which deals with a potential infringement of the users’ data protection rights.

For 2019, the FCO is likely to even increase its investigation efforts in this field. Moreover, in the course of the upcoming 10th Amendment to the German Competition Act (Act against Restraints of Competition) the legislator could enhance the competencies of the FCO to not only uncovering but also enforcing consumer protection provisions – at least this is what the FCO is advocating, as indicated by its recently published annual review for 2018 and suggested by a report commissioned by the Federal Ministry for Economic Affairs and Energy.

In any case, companies would be well advised to review their market behaviour, also from the perspective of consumer protection provisions, and prepare for increased enforcement in this field, probably also in an antitrust context.