BUNDESKARTELLAMT – AMENDMENT OF THE GERMAN COMPETITION ACT
As of 7 November 2023, the 11th amendment to the German Competition Act (GWB) entered into force following its publication in the German Federal Official Gazette. Within the scope of the amendment to the German Competition Act, certain powers that the Bundeskartellamt can use within the scope of sector inquiries, powers for the implementation of the EU Digital Markets Act (DMA) and powers for the disgorgement of benefits have come into force. This accordingly provides that:
- The Bundeskartellamt is empowered to impose behavioral or structural measures following sector inquiries. If, following a sector inquiry, it is found that there is a significant and persistent malfunctioning of competition, the Bundeskartellamt may use structural or behavioral measures or remedial measures to remedy the malfunctioning of competition, including the division of undertakings, without the need to establish that an infringement exists. These structural, behavioral or remedial measures may be applied even to undertakings in full compliance with competition law. Implementation of such measures is subject to certain procedural requirements.
- Strengthening powers for the enforcement of the DMA are regulated. The regulation enables the Bundeskartellamt to investigate violations of the DMA using its ordinary investigative powers and obliges it to notify its findings to the European Commission as the final and sole enforcement authority for the DMA.
- A presumption for the disgorgement of benefits derived from anti-competitive practices is regulated. Although disgorgement of benefits derived from competition law infringements is not a new practice in German competition law, it has not been practiced until now due to the practical difficulties in estimating the size of the economic advantage obtained through competition law infringement. With the new regulation, there is now a presumption that the competition law infringement results in an economic benefit for the infringing undertaking and that this benefit is at least 1% of the infringing undertaking's domestic turnover from the affected products or services. The presumption may be rebutted by the undertaking by proving that it was not involved in the infringement or did not profit during the relevant time period.
(Bundeskartellamt – 07.11.2023)