November 8, 2019
The German Ministry of Economics and Energy (the “Ministry”) is suggesting a significant revamp of the country’s competition rules, targeting the increased scrutiny of digital platforms.
In October, the Ministry published the Act on Digitalisation of German Competition Law (“GWB-Digitalisierungsgesetz”). The new rules shall enter into force in 2020, after the draft has passed through Parliament. Parliament might request changes to the draft bill. However, it can be expected that the main principles will become applicable law. This briefing focuses on the proposed provisions that specifically target digital platforms.
Germany has always had stricter rules than EU law on the control of unilateral behaviour of companies. Under German law, not only dominant companies but also companies with ‘relative market power’ i.e. companies on which SME’s as suppliers or purchasers depend, are subject to the same strict behavioural rules as dominant companies. The draft bill seeks to widen that concept.
The direction of the draft bill is clear. It is looking to codify tools that allow for greater scrutiny of digital platforms, with a particular focus on their specific business models/roles as digital intermediaries and their access to data. The draft explicitly introduces data as an essential facility, similar to the treatment that traditionally applies for example to harbours or railway infrastructure. Although, unlike such infrastructure, data is not a facility whose access is limited in nature but is rather reproducible. As the President of the Bundeskartellamt, Andreas Mundt, stated in a recent interview the goal of the bill is to “crack open data treasures.”
It remains to be seen whether the introduction of new legal concepts and vague terms and of a relatively low threshold for the authority to take action will facilitate faster and more robust decisions, whilst allowing sufficient legal certainty and ensuring a reliable legal framework for the digital economy. These new rules could as well result in an increase in litigation (e.g. against the authority’s measures) and, potentially, the inconsistent application of competition rules across the EU.
The following Gibson Dunn lawyers assisted in preparing this client update: Jens-Olrik Murach.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, or any member of the firm’s Antitrust and Competition practice group:
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