Bundeskartellamt publishes final report on sector inquiry into fuel wholesale: Critical view of price quotation systems – a precedent for measures under the new Section 32f GWB?

On February 19, 2025, the Bundeskartellamt published the final report of the sector inquiry initiated in April 2022 on the conditions of competition in refineries and fuel wholesale (an English summary is available here).

While the interim report published in November 2022 focused on the refining sector, the final report now published focuses on the results of the investigation at the fuel wholesale level.

Focus on price quotation systems

The final report identifies competitive risks in the current design of price quotations in the fuel wholesale trade.

According to the Bundeskartellamt's findings, price quotations are used to set prices across the entire value chain of the petroleum industry. For example, fuels at the wholesale level are mainly purchased by means of long-term supply contracts ("term contracts") that refer to price quotations, so that the sales price is not yet fixed at the time the contract is concluded. In contrast, only a small proportion of fuels are traded at fixed prices at the wholesale level via the so-called spot market – to meet short-term demand. Since petrol stations in particular procure their quantities mainly by means of term contracts, the price quotations on which they are based also have an indirect effect on the selling prices in the fuel retail sector.

Price quotes for the German fuel wholesale markets are compiled on a daily basis by S&P Global Commodity Insights ("Platts") and Argus Media. For the calculation of the quotations, these providers are dependent on (voluntary) information from market participants on transactions, bids and offers on the spot market, which is also published in addition to the calculated quotations.

On the basis of the investigations carried out, the Bundeskartellamt sees the following risks under competition law in the calculation and publication practice of price quotations:

• Risk of collusion: The existing market structures and the current transparent design of the price quotation systems favour the risk that market participants will tacitly agree on an anti-competitive (too high) price level through the exchange of information that this makes possible.
• Risk of manipulation: In addition, the method of calculation of the price quotation systems creates opportunities and incentives for the manipulation of price quotations to the benefit of the reporting market participant. For example, market participants can influence the level of a price quotation by means of selective reports, especially since the price quotations are sometimes based on only a small database (in some regions only by a single company).

Price changes at petrol stations

In addition to the investigations into the fuel wholesale sector, the Bundeskartellamt has carried out investigations into the petrol station market and examined the effect of the increasingly frequent price changes at petrol stations on consumer behaviour. In this respect, the Bundeskartellamt has found indications that, despite the availability of fuel apps, consumers are less successful in refuelling in "price valleys" than they were 10 years ago. In the Bundeskartellamt's view, the increasingly frequent price changes are in any case leading to an increasing lack of price transparency. In this respect, the Bundeskartellamt will carry out further investigations in this area and then consider further steps (e.g. of a regulatory nature) if necessary.

Outlook – (structural) orders without antitrust violations?

The final report shows that the Bundeskartellamt sees indications of a significant malfunctioning of competition on the fuel wholesale markets in Germany. Against this background, the Bundeskartellamt intends to take the following steps:

• Stronger regulation by (European) legislators: The Bundeskartellamt recommends stricter legal requirements for price quotation systems in order to protect price quotations from manipulation and collusion.
• Revision of the Principles for Oil Price Reporting Agencies ("IOSCO Principles"): In the alternative, the Bundeskartellamt is suggesting an initiative by the European Commission to revise the IOSCO Principles for Oil Price Reporting Agencies, which have so far not sufficiently addressed competition risks. In any case, a prohibition on the disclosure of information that allows conclusions to be drawn about individual price-setting behaviour and the binding setting of minimum thresholds for the calculation of price quotations is necessary.
• Reason for measures pursuant to Section 32f GWB?
  Finally, the Bundeskartellamt expressly considers – subject to any comments and comments from the stakeholders – to examine in further proceedings whether there is a malfunctioning of competition in the distribution of fuels at the wholesale level within the meaning of section 32f (3) sentence 1 GWB. In this case, the Bundeskartellamt may, to the extent that the other powers of the Bundeskartellamt are not sufficient to remedy the malfunctioning, prescribe remedial measures of a behavioural or structural nature to the undertakings contributing to the malfunctioning.
  
  Section 32 f GWB was only introduced with the 11th amendment to the GWB and entered into force on November 11, 2023. There are no use cases yet. In the final report of the sector inquiry into charging infrastructure for electric vehicles from October 2024, the Bundeskartellamt did not yet consider it necessary to apply the powers under Section 32f GWB. Following the final report on the sector inquiry into municipal waste/processing of hollow glass from December 2023, the Bundeskartellamt intended to further examine whether an injunction pursuant to section 32f (2) GWB (lower turnover thresholds for merger control in the relevant economic sector) should be issued against the Rethman Group. However, such an order has not yet been issued. The price quotation systems on the German fuel wholesale markets could therefore become the first case in which the Bundeskartellamt applies its new instruments under Section 32f GWB.