German Cartel Office decision overturned on bias concerns

The Higher Regional Court of Düsseldorf (decision of 20 August 2025, VI Kart 7/22 [V], press release) has decided in favour of Deutsche Lufthansa AG by overturning a 2022 Federal Cartel Office (FCO) decision that would have forced the airline to maintain renewed special pricing arrangements with a competing airline.

 

Background

For its long-distance flights to worldwide holiday destinations the competitor uses Lufthansa's domestic flight network for feeder flights to Frankfurt and other hubs. The competitor also used to be part of Lufthansa Group until 2009. So-called special pricing arrangements (SPA) for these feeder flights date back to this period. Lufthansa, however, terminated these agreements in 2020.

Upon a complaint by the competitor, the FCO ruled in August 2022 that this termination violated competition law and ordered Lufthansa to enter new arrangements under specific conditions (decision of 29 August 2022, B9-21/21). The authority viewed Lufthansa’s actions as an abuse of its dominant market position by denying a competitor’s access to the essential connecting services.

 

The Court’s decision

The OLG Düsseldorf overturned the FCO’s decision on procedural grounds, finding the administrative proceedings were tainted by bias concerns.

The court raised serious concerns about the FCO’s impartiality in this case – which is a remarkable allegation in German cartel proceedings. Two versions of the same meeting note were identified as the “Smoking Gun”: During access to the file Lufthansa discovered it had previously been provided with a redacted version of a note about a meeting between FCO officials and Federal Ministry of Economics (BMWi) representatives whereas the original version contained additional problematic language.

According to the note, officials stated "the goal must be to rapidly end” Lufthansa's SPA termination, when only the competitor’s side had been heard. Lufthansa's anticipated arguments were dismissed as “probably not sustainable” based solely on the competitor’s information.

Moreover, the note documented the FCO proposing a “dual track strategy” together with the BMWi, ie coordinating political and regulatory pressure against Lufthansa. Whereas the BMWi lacked legal means to exert direct pressure on Lufthansa it seemed to “collude” with the FCO in its own interest.

The court found that the bias concerns resulted from the way the two different versions were disclosed by the FCO. The FCO initially sent only the redacted version to Lufthansa and disclosed the original version only during the course of these court proceedings. Making the court believe that it was attempting to withhold material information from Lufthansa.

Finally, the court rejected arguments that the case had been resolved in the meantime. It held that Lufthansa retained a legitimate interest in challenging the decision because the original findings could still be used in the context of potential civil lawsuits against the airline.

 

Implications

This case is a victory for procedural transparency and clearly strengthens the parties’ due process rights in FCO proceedings. It sends a strong signal about the standards expected from regulatory authorities in high-stakes antitrust matters. The FCO must live up to its role as an important independent federal authority advocating only for the interests of undistorted competition. Even the appearance of impropriety, let alone actual coordination with political interests and the withholding of evidence, can undermine important regulatory decisions.

On substance, the decision turns completely around the FCO’s initial intention by denying any obligation for a “SPA” by Lufthansa. As a consequence, the competitor cannot rely on Lufthansa’s services for its feeder flights.