When the German Federal Court of Justice (BGH) confirmed the German Federal Cartel Office´s (FCO) designation of Apple as a company with paramount significance for competition across markets under the German tech-“gatekeeper” rules (Section 19(a)), this attracted considerable attention both nationally and internationally. Less discussed, however, is a procedural aspect of this case, on which the BGH only recently ruled (again): During the proceedings, Apple asked the FCO for full access to the files. The FCO denied the request, Apple appealed, and the BGH had to decide
Apple´s demand
During the proceeding to designate Apple, the FCO inter alia obtained information by sending questionnaires to 184 app publishers, 27 manufacturers of smartphones, tablets and smartwatches as well as five leading mobile phone companies in Germany. The FCO prepared notes in which it described its investigation and the evaluation procedure with respect to these questionnaires. The questions and answers were anonymized and especially the free text answers were presented in aggregated and randomized form in those evaluation notes.
The FCO granted Apple access only to the evaluation notes, claiming the need to protect business and trade secrets of the companies surveyed. Apple, however, wanted further access to the files, especially to the raw data – meaning the anonymized but not further aggregated responses to the questionnaires. Apple argued that the refusal to grant access to the complete files was a violation of its right to be heard. Consequently, Apple would be denied the opportunity to properly defend itself, which is what the right to access to the file is intended to ensure.
Apple´s demand was rejected by the FCO and Apple appealed against this decision. The BGH rejected this appeal in the same proceedings where it rejected Apples appeal on the FCO´s designation decision. Apple then went on to file another appeal, the so-called “Anhörungsrüge”, this time solely against the rejected appeal on the denied access to the file. The Anhörungsrüge is an objection based on the denial of the right to be heard in court and is a last resort subsidiary legal protection. It is only admissible if no other legal remedy or appeal is possible against a decision. As this special kind of complaint aims at rectifying a violation of rights, the same court is supposed to handle the matter. Therefore, the BGH had to decide again…
The BGH´s ruling
To make it short: The BGH dismissed Apple´s appeal.
According to the BGH, Apple´s objections were unfounded and its right to be heard was not violated. In the court´s opinion, Apple was not deprived of the possibility of an effective defence. The court reached this conclusion based on different grounds:
- The decision by the FCO was solely based on the evaluation notes which were available to Apple.
- In the past the BGH ruled that the non-access to raw data, like the questionnaires, concerns the determination of the facts of a case and not the violation of the constitutional right to be heard in court.
- During the trial on Apple´s appeal on the FCO´s decision, the BGH did not neglect to provide necessary notices to Apple. Moreover, Apple had failed to demonstrate what specific arguments it would have raised or what conclusions could have been drawn from the unprocessed data.
A procedural detail with big importance
Access to the file is a key procedural right that enables effective defence (if you would like to read more on the access to FCO case files in damage claims, check out this post). However, especially in antitrust, this right clashes with the mandatory protection of business and trade secrets from third parties. This is to ensure that companies do not gain access to sensitive information without cause by leveraging their roles as parties in antitrust proceedings.
In a Section 19(a) GWB designation proceeding, it might be particularly difficult to strike the right balance for a regulator or a court. This is because despite the designation decision itself not including any sanctions or remedies, it enables the FCO to take specific measures in future proceedings against Apple. The designation decision therefore has significant influence on how Apple is treated by the regulator in Germany.
“Designation” rings a bell… what about the EU?
For most international antitrust nerds, the term “designation” will probably relate to the Digital Markets Act (DMA) and the designation of gatekeepers. Indeed, Sec. 19(a) GWB proceedings carry some resemblances to those under the DMA. One of them being that the right to access to the file is limited. It is explicitly stated in the DMA that access is restricted by confidential information, particularly business secrets and internal documents of the European Commission or national competition authorities.
Conclusion and outlook
Since there currently are no outstanding appeals against Section 19(a) designation decisions, the BGH´s ruling has no immediate effect on any other designation decision. However, the decision gives indications for other cases where access to file could become relevant. Therefore, the tension between the procedural rights of a party and the FCO´s obligation to protect third-party business secrets will remain central to future disputes over access to the file.
Photo by Daniel Herron on Unsplash
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