Supervision of the cartel office: BGH decides on stricter competition supervision for Apple

Does the iPhone manufacturer Apple have an outstanding significant importance for competition? The Federal Court of Justice (BGH) in Karlsruhe wants to make a decision on Tuesday. The Bundeskartellamt had affirmed the question 2023. The US technology group thus undercut a stricter abuse supervision of the competitive keepers. Against the classification, the company turned to Karlsruhe with a complaint. The BGH’s cartel senate decides in the first and last instance. (Az. KVB 61/23)

In a market economy, competition leads to lower prices, better selection and more innovations. If the competition is disabled, this is frequently at the expense of customers.

Since a reform of the law against restrictions on competition (GWB) 2021, the cartel office has been easier to act against large digital companies that are significant for competition across borders of various market areas.

In a first step, the authority states regardless of a concrete violation that a group has an outstanding cross -market importance. In the second step, the cartel office can then prohibit practices, which in his view endanger the competition.

BGH could confirm classification

The evaluation is about the question of whether the company is dominant in one or more markets. In addition, it plays a role to what extent the company has access to special resources and competitive data and what influence the access of third parties has on procurement and sales markets. Based on these criteria, the Bundeskartellamt came to the conclusion that Apple was a group with outstanding cross -market importance.

At the hearing at the BGH in January, it was indicated that the cartel senate could follow this assessment. Several of the criteria that the law provides for the classification are “very highly fulfilled in the case of Apple,” said the presiding judge Wolfgang Kirchhoff. According to the first assessment, the Senate did not consider a template to the European Court of Justice – as Apple demanded in court.

Cartel office checks tracking control

So far, the Bundeskartellamt has classified five digital giants as companies with outstanding cross-market importance: the Google Group Alphabet, the Facebook group Meta, Apple, Amazon and Microsoft. Except for Apple, all resolutions are final. Amazon also lodged a complaint against the decision of the competitive keepers – the BGH confirmed the decision of the cartel office in April 2024.

Should the BGH also follow the assessment keepers’ assessment this time, this could accelerate procedures against certain practices from Apple. The Cartel Office is currently taking a close look at Apple’s tracking control for third-party apps.

Tracking means collecting data about the behavior of internet users. A customer profile can be created that may happen without the knowledge of those affected.

In the case of Apple’s case, it is about that users have to agree to tracking when using third-party apps-do not have to agree with the Apple apps. The authority checks whether Apple is preferred or other companies are hindered. If necessary, it could prohibit the group of this procedure.