FCO provides further information on development of B2B internet platform

OLF's B2B internet platform
Antitrust concerns

The Federal Cartel Office (FCO) has given further advice on the development of a business-to-business (B2B) internet platform in a recently published case report on OLF Germany.(1) The FCO's main concerns are the increased transparency between competitors on the platform and the transfer of information to OLF's shareholder Shell.

OLF's B2B internet platform

Through OLF's internet platform, petroleum products are to be traded on the wholesale level in the short-term spot market business. Initially, light fuel oil, gasoline (normal and super) and diesel fuel will be tradable, later further mineral oil products such as heavy fuel oil, liquid gas and lubricants may be tradeable.

The platform addresses only retailers, not end consumers. Potential sellers on the platform include:

• vertically integrated petroleum companies;
• local crude oil refineries; and
• independent traders and importers.

Potential customers on the platform include:

• nationwide wholesalers;
• regional resellers;
• independent petrol stations; and
• vertically integrated petroleum companies.

This makes OLF's shareholder Shell both a potential seller and a potential buyer.

Antitrust concerns

According to the FCO, anti-competitive effects could occur if a digital trading platform enables an exchange of information on parameters relevant to competition, both between the suppliers represented on the platform and between the platform operator and the industry shareholder.

Transparency between participants
OLF made arrangements to limit the transparency created by the platform – namely:

• suppliers and customers must register on the platform and set up a user account. Only then can supply data be viewed on the platform. The supply data (ie, prices, quantities and local availability) are also initially displayed anonymously;
• the contractual partner is disclosed only in the last step before the contract is concluded; and
• OLF has taken measures to prevent the desired effect of anonymisation from being undermined by the automated collection of information (by programs or bots).

Flow of information to Shell
In order to avoid the flow of information to shareholders active in the same market (in this case, Shell), which would constitute a violation of antitrust law, the platform was designed in such a way that it is separated from the shareholders in terms of personnel, organisation, technology and information. In addition, shareholders active in the same market cannot exercise the rights to information and inspection to which they are entitled under the German law on limited liability companies insofar as this restriction is required under cartel law.

For further information on this topic please contact Sascha Dethof at Fieldfisher (Germany) LLP by telephone (+49 211 950 749 0) or email (sascha.dethof@fieldfisher.com). The Fieldfisher (Germany) LLP website can be accessed at www.fieldfisher.com.

Endnotes

(1) For further information please see the FCO's case report of 9 September 2020.