Federal Administrative Court: Extensive access to documents of the Federal Cartel Office regarding fees for electronic cash payments
In its decision of May 13, 2025, the Federal Administrative Court (Case No.: BVerwG 10 C 2.24) set out groundbreaking principles on the right of access to files in competition law proceedings related to payment service fees. The case sheds light on the interfaces between the right of access to information, the protection of business interests, and the tasks of competition supervision.
Background of the proceedings
The proceedings are based on an application under the Freedom of Information Act (IFG) against the Federal Cartel Office, seeking access to documents from a previous cartel law review procedure. This procedure concerned the remuneration structure related to the electronic cash system, specifically the fees charged by credit institutions for the use of the girocard system in card payments.
The Federal Cartel Office regularly investigates whether price agreements or cartel-law infringements exist, particularly in regard to joint fee-setting. The documents at issue include statements, correspondence, and data collections concerning the banks’ fee regime.
Legal framework: Balancing of interests and duties of confidentiality
Access to official information
The IFG grants any person the right to request access to official information from federal authorities. Restrictions exist if there are legitimate interests in confidentiality at stake, such as trade and business secrets under § 6 IFG, as well as personal data (§ 5 IFG).
In this case, the protection of business-related information played a central role: Credit institutions argued that parts of the documents contained sensitive data on pricing or strategic orientation and should therefore not be disclosed. Furthermore, it was argued that unrestricted access to files could impair the effectiveness of cartel law oversight.
Principle of proportionality
The Federal Administrative Court emphasized that broad access to information serves the public interest by enabling transparency and oversight of administrative actions. At the same time, the legitimate interests of third parties must be carefully protected.
This regularly requires a balancing between public interests in transparency and the confidentiality needs of the affected companies. The right to information is not categorically excluded; only particularly significant confidentiality interests can justify a restriction.
Protection of confidential information
Protected trade and business secrets require a concrete explanation of why their disclosure could cause harm. Generalized claims are insufficient. The court emphasized the necessity of a case-by-case assessment for each individual document requested.
Consequences of the decision
The ruling of the Federal Administrative Court grants applicants extensive access to documents of the Federal Cartel Office under the IFG, unless there are very significant and specifically justified confidentiality interests opposing such access.
In addition, authorities are obliged, when assessing confidentiality interests and making any redactions, not to rely solely on general deliberations, but to conduct a differentiated, document-specific evaluation. This increases the review effort, but simultaneously strengthens the rights of those seeking information and underscores the importance of transparency in cartel supervision.
Significance for companies and the payment services market
Information policy and compliance requirements
Companies, especially in the field of cashless payments, should pay attention to the increased transparency requirements of supervisory authorities and the higher likelihood of disclosure of procedural documents. Third-party access to documents may also impact the design of internal compliance systems and the communication with authorities.
Protective measures and legal structuring options
At the same time, it remains possible—and in certain cases necessary—to point out case-specific confidentiality interests. Only an application for confidentiality that is substantiated with evidence can be successfully granted in the event of a conflict.
Summary
The current ruling of the Federal Administrative Court provides clarity on the balance between the public interest in information and the protection of sensitive business data in the context of competition law. At the same time, it highlights the high relevance of a precise justification when asserting confidentiality interests and calls on both the administration and affected market participants to carefully observe the applicable legal requirements.
Note: The proceedings and related legal assessments are highly complex and subject to ongoing developments. For more in-depth information or clarification of legal issues in the areas of cartel law, payment services law, and related fields, the lawyers at MTR Legal are available nationwide and internationally.
