In my view as a judge dealing with competition law and consumer protection as well the most interesting and important development in 2017 likely were the new competences for consumer protection conferred to the Federal Cartel Office (FCO – Bundeskartellamt) by the 9th Amendment to the German Competition Act. The well-established system of privately enforced consumer protection is now, in a first step, backed up by new investigative tools. Strengthening consumer rights with respect to the challenges of digital economy certainly must be a key priority of public policy. However, tensions between competition law and consumer protection law cannot be excluded. A recent case of the Federal Court of Justice has shown that under unfortunate circumstances consumer protection law may lead to a continued de facto application of general terms and conditions which the FCO had considered infringements of competition law (see BGH, judgment of 18th July 2017 – KZR 39/16 – Sofortüberweisung). It has to be seen how the FCO in future will manage to reconcile possible tensions between competition law and consumer protection in applying its competences in both areas.
Dr. Wolfgang Kirchhoff is a judge at the Federal Court of Justice (BGH), Karlsruhe, Germany.