English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE

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1 For Official Use DAF/COMP/WD(2013)38 DAF/COMP/WD(2013)38 For Official Use Organisation de Coopération et de Développement Économiques Organisation for Economic Co-operation and Development 06-Jun-2013 English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE ROUNDTABLE ON COMPETITION IN ROAD FUEL -- Note by Germany -- This note is submitted by Germany to the Competition Committee FOR DISCUSSION under Item IX at its forthcoming meeting to be held on June English - Or. English JT Complete document available on OLIS in its original format This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

2 ROUNDTABLE ON COMPETITION IN ROAD FUEL -- Note by Germany Introduction 1. Developments in the oil sector are a recurrent subject of broad public debate. The main focus of the debate is the level of fuel prices and their frequent fluctuations, as well as alleged anti-competitive agreements between petrol stations. 2. The Bundeskartellamt has long-standing experience in cases concerning the oil sector. In addition to numerous merger control proceedings, the Bundeskartellamt has regularly examined anti-competitive market conduct and possible abuses of dominant positions by market participants in the fuel sector. 1 The Bundeskartellamt has also conducted a general sector inquiry into the German fuel markets, with a specific focus on petrol station markets. The final report on the inquiry was published in May In September 2012 the Bundeskartellamt launched a second sector inquiry into the oil refineries and wholesale sector. 3. This contribution will present the activities and conclusions of the Bundeskartellamt with regard to the two main industry levels in Germany the fuel retail market (2.) and the oil refineries and wholesale market (3.) as well as a recent initiative of the legislator: the creation of a market transparency unit for fuels set up at the Bundeskartellamt (2.3). 2. The German Fuel Retail Market 4. A key conclusion of the sector inquiry which is also of great importance for the Bundeskartellamt's decision practice is the corroboration of the finding of a collectively dominant oligopoly on the German petrol station markets (also called fuel retail). This finding is not only based on a detailed analysis of the relevant market structures and the behavioural incentives these generate, but is also supported by an investigation into actual price setting behaviour (see no. 2.1 below). The sector inquiry also outlines possible interventionary measures within the current competition law framework that have in part already been adopted in individual proceedings (see no. 2.2 below). In addition, the findings of the sector inquiry and their discussion in the public and political debate have focused the attention on further possible measures modelled to some degree on international experience outside the competition law framework (see no. 2.3 below). The sector inquiry's findings, their assessment and implications for 1 2 Cf. inter alia OECD, Competition Policy for Vertical Relations in Gasoline Retailing, 2008, available at For further information on economic studies in various countries see Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 126 ff. Cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf. 2

3 competition law practice and competition policy thus raise numerous issues that require a more detailed debate, not least from a scientific angle Collective dominance on the German petrol station markets 5. Based on the results of detailed investigations in several second-phase merger control proceedings 4 and corroborated by the sector inquiry, the Bundeskartellamt found that the five leading companies BP/Aral, Jet (formerly Conoco-Philips/Jet), ExxonMobil/Esso, Shell and Total, which operate on a national level and are vertically integrated along the value chain, together hold a collective dominant position on the German petrol station markets within the meaning of Section 19 (2) and (3) No. 2 GWB. 5 The finding of collective dominance is based on a product market definition that assumes separate markets for diesel and petrol. 6 The Düsseldorf Higher Regional Court 7 confirmed this product market definition. It also supported the Bundeskartellamt's geographic market definition which is based on the so-called 'accessibility model. 8 According to this model, those petrol stations are included in a geographic market that can be reached by motorists within a certain travel time However, in the appeal proceedings ensuing from the prohibition of the "Total/OMV" merger, 10 the Düsseldorf Higher Regional Court did not support the Bundeskartellamt's finding of collective market dominance by the five leading vertically integrated suppliers operating on a national level. 11 Despite various structural factors which are recognized to indicate a high risk of parallel conduct in the form of implicit collusion, the court was of the opinion that the actual competitive situation on the market provided sufficient evidence of both internal competition between the five leading suppliers and effective external competition See also Discussion paper Fuel prices market power, pricing and consequences for the Experts Meeting of the Working Group on Competition Law on 6 October 2011 in Bonn, available at: E.pdf. Above all cases B8-134/07 - Shell/HPV ( B8-175/08 Total/OMV ( and B8-32/09 Shell/LOMO ( Gesetz gegen Wettbewerbsbeschränkungen (Act against Restraints of Competition) in the version of 15 July 2005 (BGBl. (Federal Law Gazette) I p. 2114, 2009 I p. 3850), last amended by Article 3 of the Act of 26 July 2011 (Federal Law Gazette. I p. 1554). Cf. Bundeskartellamt, Fuel Sector Inquiry, Interim Report of June 2009, available at: p. 25 ff. and Bundeskartellamt, decision of 29 April 2009, file reference, B8-175/08 Total/OMV. Cf. Düsseldorf Higher Regional Court, decision of 4 August 2010, file reference, VI-2-Kart 6/09 (V) "Total/OMV". For further details on the accessibility model see Federal Office for Building and Regional Planning (Bundesamt für Bauwesen und Raumordnung), available at: keitsmodell node.html. Cf. Bundeskartellamt, Fuel Sector Inquiry, Interim Report of June 2009, available at: p. 27. Cf. Bundeskartellamt, decision of 29 April 2009, file reference, B8-175/08 "Total/OMV". Cf. Düsseldorf Higher Regional Court, decision of 4 August 2010, file reference, VI-2-Kart 6/09 (V) "Total/OMV". 3

4 7. In the Bundeskartellamt's view, the fuel sector inquiry has provided further valuable qualitative and quantitative findings which support the finding of market dominance rather than the thesis of effective competition in the petrol station markets. 8. On 6 December 2011 the German Federal Court of Justice (Bundesgerichtshof BGH) annulled the decision of the Düsseldorf Court and referred the case back for further clarification of the facts. 12 In the BGH s view, the findings of the Düsseldorf Court did not exclude a collective dominance of the five leading suppliers, which would be strengthened by Total s further acquisition of 59 petrol stations. The BGH stated that the existence of competition should have been evaluated with respect to the structural market conditions such as high concentration, vertically integrated suppliers and the high degree of price transparency and product homogeneity in the fuel retail market. Meanwhile, the complainant Total has withdrawn its appeal against the Bundeskartellamt s prohibition decision, rendering the decision final. In the following the Bundeskartellamt s reasoning underlying the finding of collective dominance will be explained in detail Qualitative analysis Structural factors and incentives 9. In accordance with well-established economic findings, there are several structural parameters that make markets prone to implicit collusion (or tacit collusion) as a form of collective dominance. Fuel markets are a prime example of such markets. 13 This is not only due to the high level of market concentration and high barriers to entry, but also, and in particular, due to the key characteristics of the products (homogeneity, low aggregate price elasticity) and the general market conditions (stable supply and demand conditions, frequent and relatively small transactions with a fragmented demand side, high level of market transparency). Other indicators are the symmetry between the leading suppliers, which is a result of the vertical integration and nationwide presence of the companies, their structural links and the fact that they repeatedly interact on various (regional and product) markets (so-called 'multi-market contacts'). 10. On account of the structural factors indicated above, the Bundeskartellamt is of the opinion that the behavioural incentives in the market are such that permanent and stable parallel conduct is very likely. This view is also in line with the so-called Airtours criteria 14 to which the BGH refers in its assessments. 15 Market transparency, for example, is very high in fuel markets, along the entire value chain. This applies in particular to the final prices, which must be displayed at the petrol stations due to federal Cf. Federal Court of Justice, decision of 6 December 2011, file reference KVR 95/10; available at: &pos=11&anz=16. On the economic background cf. inter alia Schwalbe, Zimmer, Kartellrecht und Ökonomie, 2 nd ed., 2011, p. 305 ff., in particular also p. 373 and Bundeskartellamt, Guidance on Substantive Merger Control, March 2012 p. 31; on a detailed description of the qualitative aspects of the findings of the sector inquiry see: Bundeskartellamt, Fuel Sector Inquiry, Interim Report of June 2009, available at: p. 33, as well as Bundeskartellamt, Fuel Sector Inquiry, Final Report of May 2011, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 48. Cf. European Court of First Instance, decision of 6 June 2002, file ref. T-342/99, "Airtours/Kommision" = WuW/E EU-R p Cf. in particular BGH, decision of 11 November 2008, WuW/E DE-R 2451, 2457 E.ON/Stadtwerke Eschwege; cf. as well: BGH, decision of 14 June 2010, WuW DE-R, 2905, Phonak/GN Store. 4

5 regulation 16 and which are the key competition parameters and therefore the most likely focus of tacit collusion. It would seem almost impossible for a deviation from the established price-level to go unnoticed (and thus be profitable) because of the elaborate system of mutual monitoring which exists between the market players The structure of the fuel markets provides the dominant suppliers with a vast potential for punishing deviations from the implicit collusion by individual members. Such a punishment is made easier by the numerous structural links between the dominant suppliers and the possibility to start local 'price wars' as a disciplinary measure Moreover, there is hardly any external competitive pressure on the dominant suppliers. In addition to the high barriers to entry, this is owed to the fact that the smaller or independent petrol station operators usually lack both the incentive and the ability to exert effective competitive pressure on the dominant suppliers. Most notably, they do not have their own refinery capacities and are therefore dependent on the dominant suppliers for their fuel supplies. This vertical dependence enables the dominant suppliers to punish price-undercutting by "free" petrol stations, which could otherwise destabilise the implicit collusion within the dominant group. 19 As a consequence, incentives for competitive moves are extremely low and implicit collusion seems to be the more profitable strategy, also in the long term Quantitative analysis of the actual price setting behaviour 13. A main objective of the sector inquiry was to examine the actual price setting behaviour in the market in order to verify the structural findings described above. The quantitative analysis of price setting behaviour in four model regions in the period from 1 January 2007 to 30 July 2010 supports, in the Bundeskartellamt's view, the finding that there is a lack of effective competition in the German petrol station markets. 14. The fuel markets examined are all characterised by distinctive cyclical price movements which consist of strong price increases of 5 Euro cents or more, and significantly less pronounced, but more frequent price decreases. When analysing these price patterns it has to be noted that such cyclicity in itself is competitively neutral, i.e. it is neither evidence of effective competition nor of the lack thereof. Such cyclical price movements are usually analysed using the so-called 'Edgeworth price cycles' model developed by Maskin and Tirole. 20 Accordingly, cyclical price movements as they can be found in the fuel sector can result from implicit or even explicit collusion. 21 The decisive factors are expectations by the companies when initiating a price increase at the bottom of a price cycle. Under effective competition, Section 8 (1) Regulation on price quotations. Cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 61 ff. Cf. ibid. Cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 62 ff. The seminal article is Eric Maskin and Jean Tirole, 1988, A Theory of Dynamic Oligopoly II: Price Competition, Kinked Demand Curves and Edgeworth Cycles, Econometrica, Vol. 56, pp Cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 115 ff. with a detailed reference on relevant theoretical and empirical publications. 5

6 companies are likely to refrain from (unilateral) price increases because of the lost sales and reduced profits they risk with such an action. If their competitors do not follow suit with a price increase, or only to a significantly lower extent, the increase will remain unprofitable and fail. Conversely, if the market players find a mechanism by which suppliers can expect their competitors to always join in price increases and usually at the same rate, the risk of lost sales and profits is correspondingly lower. As a consequence, price increases are more frequent and more substantial and the average price over the course of a cycle is higher than would otherwise be the case. The more successful the market participants are in resolving the 'coordination problem' at the bottom of a price cycle, both with regard to the timing and the extent of the price increase, the more the average price level over the course of the cycle will be likely to exceed the level prevailing under effective competition. 15. In its quantitative analysis, the Bundeskartellamt has therefore paid special attention to the rounds of price increases that had been identified in the inquiry. It was able to determine several features that confirm the anti-competitive character of the cyclical patterns on the German fuel markets. These features include the (geographic) scope of price increases, as well as the question of who generally initiates them, when and with what minimal or maximal time lag the other market players follow suit. 22 As a rule, price increases occur in the entire petrol station network of the market players, whereas price reductions occur as selective measures initiated by individual petrol station operators. Only two of the suppliers typically become active as 'price leaders' and initiators of price increases. The price increases that occurred during the period covered by the analysis were initiated almost exclusively by either BP/Aral or Shell. In 90% of the cases the first follower, again either BP/Aral or Shell, then increased its price exactly three hours after the first increase and by the same amount. As regards the other members of the dominant group, 23 it is also possible to identify specific intervals during which they increased their prices to the same level as the respective leader of the price increase. 24 As regards the timing of price increases, it is also possible to identify certain 'reliable' patterns, up to precise time-frames. The most prominent pattern identified in the sector inquiry for the relevant time period was that the price level of diesel and petrol was lower at the beginning of the week and increased, at easily identifiable points in time, over the course of the week until the most expensive day of the week, which was Friday. 16. It was also established that the price increase patterns over the course of the week were reflected in a corresponding increase of the relative gross margin. 25 It has to be noted, however, that it was not For a detailed description of the relevant findings of the quantitative analysis cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, p. 74 ff. as well as the extensive data appendix. One exception is Conoco-Phillips/Jet. As a rule, its fuel prices level off at exactly 1 Euro cent/litre below the fuel prices of the other members of the dominant group. For more details see Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, pp. 31, 68. Cf. ibid., pp. 27 ff., 74 ff. 6

7 analysed to what extent the margin might be inflated when compared to a figure under effective competition. Nonetheless, due to the increase of the relative gross margin, any justification of the price increases by a corresponding increase in procurement costs can be ruled out. 2.2 Competition law enforcement relating to the German markets for petrol stations 17. Contrary to the frequently expressed suspicion by the public that companies collude on fuel prices, the Bundeskartellamt has found no evidence of illegal agreements on fuel prices between the oil companies. 26 There are no indications of 'agreements' between the relevant suppliers that go beyond a parallel conduct in the form of implicit collusion. Their collectively dominant position on the fuel markets does in itself not constitute a competition law violation. The findings of the sector inquiry will be used, however, as a basis for the application of tools currently available under competition law; at the same time they raise the question of whether this can be regarded as sufficiently effective Merger control 18. The main tool to prevent market structures from worsening further is merger control. 19. The creation or strengthening of a dominant position had already been expected in the two major merger cases Shell/DEA 27 and BP/E.ON (ARAL) 28 in 2001, which was why both where only cleared subject to commitments. 20. The Bundeskartellamt took a strict approach in merger control proceedings affecting the fuel market again in the years 2008 and 2009 in the merger cases Total/OMV, 29 Shell/HPV 30 and Shell/LOMO. 31 Against this background the Bundeskartellamt was hoping for clarification by the Federal Court of Justice, as the highest court, on whether there is indeed a dominant oligopoly in the German fuel markets in the 'Total/OMV' case. However, due to Total s withdrawal of the appeal against the Bundeskartellamt s prohibition decision, its decision has become final. Thus, there will be no judicial clarification in these proceedings Control of company conduct 21. The control of company conduct is another option to safeguard competition in the fuel markets. Here, the main focus lies on the examination of vertical contractual relations and price setting strategies applied by the leading suppliers versus small and medium-sized competitors in their supply relationships The gross margin is the difference, adjusted for taxes, between the (average) sales price at the petrol station and the (average) wholesale price, which is available in the form of daily price quotations published by a market intelligence firm (Oil Market Report, OMR). A case by the Canadian competition authority on account of explicit cartel agreements between petrol station operators is of interest in this respect. The operators were accused of having agreed on the timing and extent of price increases over the phone. During the agreement period there were strong cyclical price movements in the markets affected; for information on this case cf.: cf. also: Erutku, Hildebrand, Conspiracy at the Pump, Journal of Law and Economics, 53 (2010), pp Cf. Bundeskartellamt, decision of 19 December 2001, file reference, B8-120/01 "Shell/DEA". Cf. Bundeskartellamt, decision of 19 December 2001, file reference, B8-130/01 "BP/E.ON (ARAL)". Cf. Bundeskartellamt, decision of 29 April 2009, file reference, B8-175/08 "Total/OMV". Cf. Bundeskartellamt, decision of 7 March 2008, file reference, B8-134/07 "Shell/HPV". Cf. Bundeskartellamt, decision of 8 May 2009, file reference, B8-32/09 "Shell/LOMO". 7

8 22. Few independent petrol station operators point out predatory pricing strategies applied by vertically integrated petrol stations. Sales below cost price and price squeezes are two possible strategies that can result in lower prices in the short term. In the medium to long term, however, these strategies will squeeze small and medium-sized companies out of the market and lead to higher end consumer prices. 23. In April 2012 the Bundeskartellamt opened proceedings in a few cases against the five major oil companies on suspicion of unfairly hindering independent petrol stations (Deutsche BP/Aral, ExxonMobil Europe/Esso, Jet Deutschland, Shell Deutschland and Total Deutschland). 32 Jet Deutschland appealed against a disclosure decision of the Bundeskartellamt. In March 2013 the Düsseldorf Higher Regional Court rejected the appeal and ruled in favour of the Bundeskartellamt so that Jet had to deliver the necessary information to the Bundeskartellamt. Therefore, the proceedings are still pending Competitive situation on motorways 24. One of the results of the sector inquiry was that the competitive conditions in the sectors of fuel sales through motorway petrol stations differ considerably from those through off-motorway petrol stations. With regard to fuel sales through motorway petrol stations, the Bundeskartellamt has identified competition problems and worked towards reshaping the sector in line with competition rules. The aim was to prevent the discrimination of small and medium-sized oil companies in the allocation of fuel supply and distribution licences as well as to open up this business sector to foreign newcomers or incumbent companies with alternative strategies Effectiveness of competition law tools Market Transparency Unit for Fuels 25. The existing collective dominance on the fuel markets can hardly be remedied with competition law tools alone. At best, with the help of abuse control, it is possible to prevent dominant oil companies from applying abusive practices. However, abuse control can only prevent the competitive potential of non-integrated small and medium-sized suppliers from being further weakened. It cannot change the structural causes mentioned above for the low incentives of these market participants to engage in intense price competition. 26. The publication of the fuel sector inquiry has resulted in a public and political debate on whether the existing competition law tools are sufficient and, in particular, whether existing collective dominance needs to be 'endured' or whether there is a need for more market monitoring or other measures. As to the question whether a price regulation based on the models of other countries (such as Austria, West- Australia) should be introduced, the Federal Government has decided not to encroach in the companies freedom to set and change prices. There was no robust empirical evidence on the effects of state rules on price changes and price regulation with regard to permanently lower consumer prices or improved competition. It could not be excluded that some forms of price regulation may even weaken the position of small and medium-sized oil companies and independent petrol stations. In lieu thereof, the Federal Government has decided to improve market transparency by the creation of a market transparency unit for fuels Cf. Bundeskartellamt, Press release of 4 April 2012, available at: For more details cf. Bundeskartellamt, Fuel Sector Inquiry, Final Report May Summary, available at: 085_Abschlussbericht_SU_Kraftstoffe_Zusammenfassung-E.pdf, pp

9 2.3.1 Market Transparency Unit for Fuels 27. In order to strengthen competition on the fuel (retail) markets, the German Federal Cabinet has adopted a draft law for the creation of a market transparency unit for fuels (Markttransparenzstelle für Kraftstoffe). 34 In December 2012, the German Market Transparency Unit Act (Markttransparenzstellen- Gesetz) which also stipulates the creation of a market transparency unit for the electricity and gas wholesale trading market has entered into force. The specific details were laid down in an Ordinance of the Federal Ministry of Economics and Technology on the Market Transparency Unit for Fuels (Verordnung zur Markttransparenzstelle für Kraftstoffe) which has entered into force at the end of March The market transparency unit for fuels will be set up at the Bundeskartellamt. 35 It will take up its work during the course of The creation of a market transparency unit for fuels allows for a real time recording of fuel prices at petrol stations in Germany. For this purpose, oil companies and petrol station operators will be obliged to report to the market transparency unit for fuels any changes in the price of the fuel types Super E5, Super E10 and Diesel within five minutes. Small and medium-sized companies can be exempted from the obligation to report fuel prices. 29. The reporting requirement will enhance transparency and strengthen competition. The objective of the market transparency unit for fuels is twofold: The Bundeskartellamt should find it easier to identify and punish unauthorised behaviour on the markets, such as breaches of antitrust legislation. At the same time, motorists will be able to compare current fuel prices at petrol stations. 30. First, the Bundeskartellamt (and the cartel authorities of the Länder) will be provided with a better data basis. This will make it easier for them to identify indications of potential infringements (in particular, predatory pricing strategies by the major oil companies, such as sales below cost price and price squeezes) and to detect and prosecute these infringements. 31. Second, the fuel prices recorded by the market transparency unit for fuels will be released to consumer information services. It is envisaged that consumer information services develop smartphone applications and internet websites in order to provide consumers with location-based or route-related information on fuel prices. Thus, consumers will have access to current, comprehensive and reliable information on prices at petrol stations. 32. The legislator and the Bundeskartellamt do not expect an immediate effect on prices but hope for positive medium-term effects by raising the competitive pressure between suppliers; however, these effects depend very much on the active use of the provided data and switching opportunities by consumers. 3. Oil refineries and petroleum wholesale market in Germany 3.1 Sector inquiry on oil refineries and petroleum wholesale market 33. In September 2012 the Bundeskartellamt launched its second sector inquiry into the oil sector. The focus of this inquiry is on the competitive conditions on the production and wholesale levels of the sector, which are upstream of the petrol station markets. These include the refinery sector on the one hand and the physical transport and storage of crude oil and oil products on the other. At the same time the Cf. Federal Ministry of Economics and Technology, press release of 2 May 2012: Cf. Bundeskartellamt, website: 9

10 inquiry will examine trading activities in the oil wholesale markets. Due to the fact that the Bundeskartellamt has to set up the market transparency unit for fuels in a very short time frame, its progress on the sector inquiry on oil refineries and the petroleum wholesale market is on hold at the moment. 3.2 TAL Case Access to pipeline as an essential facility 34. Recently the Bundeskartellamt has conducted a case regarding a crude oil pipeline. A complaint was received in August 2012 from the Ingolstadt refinery about access to the Transalpine Ölleitung (transalpine oil pipeline, TAL). 35. The Ingolstadt refinery is one of 13 refineries in Germany that process crude oil into mineral oil products (inter alia petrol and diesel fuels). The Gunvor group purchased the Ingolstadt refinery after the latter had become insolvent. To resume the operation of the refinery, it was decisive that the supply with crude oil via the TAL (which leads from Trieste to Bavaria) was assured. Access to the pipeline was initially denied to the refinery. Gunvor therefore filed a complaint with the Bundeskartellamt. 36. The Bundeskartellamt came to the preliminary view that the Ingolstadt refinery has a justified claim to be granted access to the TAL according to unilateral conduct rules, as this pipeline is an essential infrastructure facility without which the operation of the refinery would not be possible. 37. On account of the high time pressure in the insolvency proceedings, the Bundeskartellamt had suggested a settlement agreement to the parties at the beginning of September This suggestion was accepted by the parties and subsequently implemented. The Ingolstadt refinery will now be granted access to the TAL for its crude oil supplies on the basis of appropriate network fees and the operation of the refinery was assured for the time being. 38. In the further course of the proceedings, the Bundeskartellamt investigated whether the allocation of capacities in the case of shortages and the level of network fees were appropriate. In the Bundeskartellamt's view, both the capacity management and the new tariff system of the TAL are nondiscriminatory and in line with competition law. The proceedings against the group companies of the TAL could therefore be terminated. 4. Conclusion 39. As shown above, the German fuel sector is an area of rather high enforcement and investigation activity. The second sector inquiry is expected to bring new insights into the upstream markets. On the retail level the new market transparency unit for fuels will take up its work during the course of The legislator and the Bundeskartellamt do not expect an immediate effect on prices but hope for positive medium-term effects depending on the active use of the provided data and switching opportunities by consumers. 10