January 28, 2021
On January 19, 2021, the 10th Amendment of the German Competition Act (“ACR”) entered into force, also known as “GWB Digitalization Act” (the “Amendment”).
With the passing of the Amendment, Germany is setting the pace for an ambitious goal: the regulation of digital platforms. As noted during the parliamentary discussion, the new provisions are specifically designed to provide the German Federal Cartel Office (Bundeskartellamt) with an efficient instrument against alleged “Wild West methods” in the digital sector to keep digital markets open. The Amendment also introduces a number of other changes to the German Competition Act concerning, inter alia, antitrust investigations procedure, leniency and cartel damage claims.
In the legislative process, the German Parliament has also implemented some last-minute changes to the merger control provisions: the two domestic turnover thresholds were increased from EUR 25 million to EUR 50 million, and from EUR 5 million to EUR 17.5 million. This major policy shift will result in a significant decrease of notifiable transactions, thereby freeing up capacities within the Bundeskartellamt for scrutiny of the digital space. However, as highlighted in our 2020 Year-End German Law Update, the “GWB Digitalization Act” provides the Bundeskartellamt with the authority to require companies, which are deemed to reduce competition through a series of small acquisitions in specific markets in which the Bundeskartellamt has conducted sector inquiries, to notify every transaction provided that certain thresholds are met.
A brief overview of the most important provisions with regard to the regulation of digital platforms and related procedural changes is provided below.
NEW PROVISIONS AIMED AT DIGITAL PLATFORMS
Similar to the competition law regime(s) within the European Union, the German Competition Act features rules on the abuse of market dominance. However, unlike many other EU jurisdictions, Germany always had a stricter regime, in that provisions on market abuse also apply to companies, which are not dominant but possess so called ‘relative market power’. Now, the Amendment introduces an additional category of market power, which is clearly aimed at digital platforms. The most important changes include the following:
If the Bundeskartellamt issues an order declaring that it considers a company to have paramount significance for competition across markets, the authority can prohibit the company from, inter alia, (i) preferential treatment of own services, (ii) the impediment of competition on markets where the company is not dominant, (iii) the creation of entry barriers by the use of data collected on a dominated market, or (iv) the restriction of the interoperability of products, services or data. The Bundeskartellamt shall also have the power to prohibit measures, which impede other companies conducting their business activities on procurement or sales markets (e.g. through pre-installation or integration of the dominant company’s offers) and to prohibit the demanding of benefits for the treatment of offers from another company, which are disproportionate to the reason for the demand (e.g. if the dominant company requires the transfer of data or rights for the presentation of the offers, which are not strictly necessary for this purpose).
Some stakeholders have complained that, so far, the Bundeskartellamt has not been able to react swiftly enough to the fast-paced developments in the digital realm. To address this perceived lack of ‘clout’, as the German Federal Minister for Economic Affairs and Energy, Peter Altmaier has put it, the Amendment introduces new provisions with regard to interim measures. The Bundeskartellamt will have the power to step in already on the basis that it finds an infringement of antitrust rules ‘predominantly likely’ and it deems the interim measure necessary for the protection of competition or because of an imminent threat of serious harm on another company. For appeals against such interim measures and all measures taken by the Bundeskartellamt in connection with the new category of ‘super dominant’ market players, the Amendment introduces a fast-track to the Federal Court of Justice, Germany’s highest civil court. All disputes in connection with these measures, including all independently contestable procedural acts, are decided in the first and last instance by the Federal Court of Justice. By establishing the Federal Court of Justice as the first and final authority to decide on these measures, the German legislator makes clear that they are well aware of the sweeping scope of the Bundeskartellamt’s new powers and the potential harm they may cause. However, for companies seeking judicial relief under the new rules, one layer of judicial review has been stripped away. This could raise some constitutional concerns.
It is hard to predict, how these new provisions will play out in practice. Nonetheless, Germany has certainly rung in the first round. Regulators around the globe are increasingly trying to curb digital platforms’ powers and to tackle the competitive challenges resulting from the mass collection of data, which is perceived as the new gold of the 21st century. In light of the recent publication of the draft regulation on an EU Digital Markets Act by the European Commission, it remains to be seen how the German provisions will fit into the proposed European framework. However, the EU Digital Markets Act is not expected to come into force before 2022. Thus, the “GWB Digitalization Act” might prove to be a welcome opportunity for all stakeholders to put these new legal concepts to the test.
 Please also refer to our previous alerts in this respect: “Competition 4.0 in Germany: Proposed Changes to German Antitrust Rules Targeting Digital Platforms”, November 8, 2019 (available at: https://www.gibsondunn.com/competition-4-0-in-germany-proposed-changes-to-german-antitrust-rules-targeting-digital-platforms/) and Section 9.3 in the 2020 Year-End German Law Update, January 14, 2021 (available at: https://www.gibsondunn.com/2020-year-end-german-law-update/#_Toc61506166).
 See for example, the results of an expert working group regarding the topic “Industry 4.0 – Antitrust Considerations”, which was established by the Federal Ministry for Economic Affairs and Energy in 2018 (available in German at: https://www.plattform-i40.de/PI40/Redaktion/DE/Downloads/Publikation/hm-2018-kartellrecht-ag4.pdf?__blob=publicationFile&v=6).
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