Fuel Prices And Competition Law: The Bundeskartellamt Steps Up

Between €0.30 and €0.50 more per liter at the gas station within just a few weeks: the blockade of the Strait of Hormuz has triggered a price development in many countries around the world on a scale last seen after Russia's invasion of Ukraine. Politically, this is an energy crisis. From a competition law perspective, it is an unusual constellation, an external shock hitting an already weakened oligopolistic market. While competition authorities in several other countries have started investigations based on their existing tools, the German legislature has enacted new rules at a pace rarely seen in practice.

On April 9, 2026, the German competition authority (Bundeskartellamt) sent out requests for information (RFI) to all oil refineries active in Germany, asking them to set out which factors determine their pricing, how the crisis affects those prices, and where within their corporate structures the responsibility for crude oil purchasing and fuel distribution is located. These RFIs were based on the German Fuel Measures Package, presented on March 17, passed on March 27, and entered into force on April 1, thus within ten days, which is unprecedented for an amendment to the German Competition Act (GWB).

The new law contains three core elements: First, Section 29a GWB introduces a sector-specific price control mechanism. Suppliers of fuels in a market upstream of the sale to end consumers, i.e., at refinery or wholesale level, are prohibited from abusing their dominant position or relative market power by charging prices that unreasonably exceed their costs. Infringements may lead the Bundeskartellamt to issue prohibition and cease-and-desist orders (including structural measures), the recovery of profits, and, in cases of intentional or negligent violations, fines of up to 10% of the group's worldwide turnover. However, the authority is not empowered to reduce prices or set price caps.

Second, the burden of proof is shifted, in two stages. Companies initially bear the burden of proof regarding the allocation and amount of their own costs. When the costs significantly exceed the market level, companies must also prove the reasonableness of these costs. The authority is thus no longer required, unlike under the general abuse of dominance provision, to provide positive proof that a price is unreasonable. It is sufficient to point out a conspicuous cost or price discrepancy and leave the justification to the company. This is not new in German competition law, as Section 19a(2) GWB already requires large digital platforms to bear the burden of presenting and proving the existence of an objective justification, but the authority must first positively prove a specific conduct clearly outlined in the statutory text. Section 29a GWB goes further, because companies bear the burden of proof even regarding the allocation and amount of the costs themselves. The Bundeskartellamt may initially limit itself to a conspicuous price-cost gap, while the entire factual basis for the allegation of abuse must be provided by the companies.

Third, the law introduces the so-called "12 o'clock rule," under which petrol stations may raise prices only once a day, at noon, while reductions remain possible at any time. The model is openly inspired by Austria.

The issuance of the RFIs of April 9 is thus the very first application of a brand-new provision with no administrative practice, nor case law, in a politically charged case. The new rule is modeled on Section 29 GWB, which has been applied since 2007 to electricity, district heating and pipeline-bound gas. Both provisions prohibit prices exceeding costs "in an inappropriate manner", and both reverse the burden of proof. Yet the market contexts are fundamentally different. Section 29 GWB was created for grid-based energy markets with natural monopoly characteristics, where dominance was structurally given, and the Bundeskartellamt could develop a differentiated body of case law, particularly the benchmarking concept. Even there the instrument showed flaws: the concept of "costs" remained vague, the benchmarking struggled when reference markets were themselves monopolistic, and the practice ultimately remained limited to a handful of gas pricing cases. In electricity generation, the provision was effectively never applied at all.

This already brittle instrument is now being transposed into a globalized commodity market. Refineries are not natural monopolies, as there are several domestic suppliers and import options from other Member States. The question of how dominance or relative market power at the refinery and wholesale level should be established is left open by Section 29a GWB. The Bundeskartellamt will have to develop a market definition and market power analysis for fuel wholesale from scratch, under political time pressure. Two questions will determine how this new rule will operate in practice.

• First, what are the "costs" of a refinery? Crude oil yields gasoline, diesel, kerosene, heating oil and bitumen simultaneously and cost allocation is methodologically contested, compounded by inventory holding, hedging positions and FIFO versus weighted-average stock valuation. A refinery that bought its crude cheaply three weeks before the Iran crisis carries lower input costs than the current world market price; whether it must pass that advantage on, the law does not say.
• Second, what is "customary in the market"? Section 29a GWB requires suppliers to show that their costs do not significantly exceed what is customary but offers no reference market. An EU-wide comparison is natural yet would require taxes, transport costs and regulatory differences to be stripped out and no reliable methodology exists.

The practical limits of the new instrument became visible almost immediately. By April 9 the "12 o'clock rule" had not produced any short-term dampening effect on prices, which even reached new record highs, driven by the parallel surge in crude oil. Against this background, the German government announced a second and very different package of measures on April 13, introducing a temporary reduction of the energy tax on petrol and diesel by approximately €0.17 per liter for two months, together with a tax-free crisis bonus of up to €1,000 that employers may pay to their employees. This new law, which entered into force on May 1, suggests that competition law alone may not be sufficient to deliver short-term relief for end-consumers. The government's official position is that the cost of the tax reduction shall be offset through other measures aimed at the oil industry. 

However, it is still unclear how the Bundeskartellamt will effectively enforce its new powers, which go far beyond the traditional competition law toolbox. In a statement of April 30, President Mundt confirmed that the proceedings started with the RFIs to oil refineries will be pursued vigorously by his authority, even though the Higher Regional Court of Düsseldorf granted interim relief to fuel price information services Argus Media and S&P Global. Both had contested the legality of RFIs received from the Bundeskartellamt in 2025 on a different legal basis as part of a sector inquiry into wholesale fuel pricing.

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