German Parliament Has Adopted the Government’s Draft on the 11th Amendment to the German Act Against Restraints of Competition
The German Parliament (Bundestag) has adopted the 11th GWB amendment on July 6, 2023. After being approved by the Bundesrat, Germany’s second legislative body, the legislative procedure will be completed, approximately by the end of September. The amendment proposal leads to a harsher German competition law with new powers for the Federal Cartel Office (Bundeskartellamt) as German Minister of Economics, Robert Habeck already stated his intentions of a competition law with ‘claws and teeth’.
The amendments introduced can be summarized under three key points:
DMA Enforcement, § 32g GWB-RegE
On October 12, 2022, the Digital Markets Act (DMA) was published in the Official Journal of the EU and the rules of the act apply since May 2, 2023. The main competence for the enforcement of the DMA lies with the Commission but member states’ authorities are also to be allowed to investigate possible infringements regarding the regulations of the DMA. Also, the DMA can become the subject of private enforcement in member state civil courts. As such, the relevant regulation allows the local application of DMA in Germany.
Revocation of benefits
The new regulation of § 34 IV GWB-RegE allows the competition authority to take back the benefits/advantages acquired from competition law violations more effectively. The legal presumption applies if a company has obtained an advantage amounting to 1% of the domestic sales related to the violation. The revocation is capped at 10% of the previous year's total sales in relation to the authority's decision in order to prevent cases of hardship. Only under very restrictive criteria it is possible to rebut the legal presumption.
New intervention instruments (§ 32e and § 32f RegE)
§ 32f RegE now allows the authority to adopt and implement behavioral or structural measures following a sector enquiry if a "significant and continuing disruption of competition" has previously been identified in a sector.
In particular, behavioral or quasi-structural obligations should be possible. The regulation includes, for example, the access to data, interfaces, networks and other facilities. It is also possible, for example, to impose requirements on business relationships between companies in the relevant markets or on certain contractual arrangements as well as obligations on the organizational separation of company divisions.
Accordingly, it is safe to express that Bundeskartellamt is now equipped with several new tools.
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