Sector inquiry into fuel wholesale and Federal Cartel Office’s “New Competition Tool”

Following the 11th amendment to the German Act against Restraints of Competition (ARC), the new section 32f(3) of the ARC empowers Germany’s Federal Cartel Office (Bundeskartellamt) to rectify malfunctioning of competition found during a sector inquiry through suitable remedial measures. These new powers of intervention are now being used for the first time.

The basis or trigger for this is the recently completed sector inquiry into refineries and fuel wholesale, which investigated the complex structures and pricing mechanisms in the petroleum industry. In the final report on the sector inquiry (in German only) published on 19 February 2025, the Federal Cartel Office found that the structure and handling of the price indices most commonly used in the wholesale fuel market raised antitrust concerns.

In a press release dated 6 March 2025, the Federal Cartel Office said it was considering using its new powers of intervention – also known as the “New Competition Tool” – in the sector of fuel wholesale for the first time. It gives the Federal Cartel Office the option of taking measures against companies when there is “significant and continuing malfunctioning of competition”, even without having identified an actual infringement of antitrust law. Section 32f ARC adds tools with a lower intervention threshold to the Federal Cartel Office’s powers to enable targeted action to be taken against malfunctioning of competition in concentrated markets (see Noerr Insights and our Competition Outlook 2025).

Focus on price indices

Looking at the findings of the sector inquiry, the Federal Cartel Office can see signs of structural malfunctioning of competition in the fuel wholesale sector. The focus is on the price indices used in the sector, as they play a key role in pricing throughout the entire value chain. These indices are calculated daily by information service providers based on reports from market participants on buy and sell bids and completed transactions and are made available to subscribers for a fee.

The sector inquiry did not reveal any indications of specific infringements of antitrust law in relation to price information services. However, the Federal Cartel Office doubts that the current method of calculating price indices and their application provide enough protection in practice against possible malfunctioning of competition. Depending on their design, price indices can lead to high market transparency and thus increase the risk of collusion between market participants. There is also a risk that individual market participants may deliberately manipulate price indices.

Structural malfunctioning of competition in the fuel wholesale sector?

Due to the risks mentioned above, the Federal Cartel Office has now initiated proceedings under section 32f(3) ARC for the first time in relation to fuel wholesale. In particular, it will investigate how the two most frequently used price indices in Germany, published by Argus Media and S&P Global, affect competition. If the Federal Cartel Office identifies a significant and continuing malfunctioning of competition in the market, it may then require market participants to take certain remedial measures, even if an actual infringement of antitrust law has not been identified. These could include, for example, requirements for business relationships, contractual arrangements, and whether and how information may be disclosed, but potentially also structural measures (see section 32f(3), sentence 6 and 7, ARC).

According to the Federal Cartel Office, the findings so far indicate that its conventional powers may not be enough to effectively rectify the suspected malfunctioning of competition. The competition authority has therefore decided to use this case to utilise its New Competition Tool for the very first time.

According to the law, the Federal Cartel Office is meant to exercise its powers of intervention, including the decision on any remedial measures considered necessary, within 18 months of publication of the final report on the sector inquiry. This period is relatively short compared to cartel proceedings, for example. As these proceedings are uncharted territory for the Federal Cartel Office, thoroughness is likely to be more important than speed. It is not out of question that the Federal Cartel Office will (again) ask companies operating in the sector to provide information, for example if the information collected in the sector inquiry does not appear to be sufficient, or if an update is considered necessary. Companies operating in the wholesale fuel market are advised to seek antitrust advice on the possible results of the proceedings and the potential impact on their own business activities rather sooner than later.