The 10th amendment to the German Competition Act has entered into force today as the “Act Amending the Act against Restraints of Competition for a focused, proactive and digital competition law 4.0 and amending other competition law provisions” (“GWB-Digitalisierungsgesetz” - GWB Digitalisation Act).
Four main changes were at stake:
Accordingly, with the introduction of Section 19a:
- The Bundeskartellamt will be able to intervene at an early stage in cases where competition is threatened by certain large digital companies.
- As a preventive measure the Bundeskartellamt can prohibit certain types of conduct by companies.
- The legal process was shortened since appeals against decisions issued by the Bundeskartellamt based on Section 19a will be directly brought before the Federal Court of Justice, by-passing the Düsseldorf Higher Regional Court.
- A more detailed provision regarding the traditional control of abusive conduct was specified and an internet-specific criterion was added. The Act stipulates that access to data relevant for competition, and the issue of whether a platform has what is called the power of intermediation, must also be considered.
- As to the rules for companies with relative or superior market power, the protective scope of the Act will no longer be limited to small and medium-sized companies.
- Finally, under certain preconditions, the Bundeskartellamt can order in favour of dependent companies that access to data must be granted in return for adequate compensation.
The Act aims at easing the bureaucratic burden on companies by readjusting the turnover thresholds in merger control. In future mergers will be subject to control only if among other conditions, one of the companies concerned achieves an annual turnover in Germany of at least 50 million euros (previously 25 million euros) and if another company participating in the merger achieves an annual turnover in Germany amounting to at least 17.5 million euros (previously 5 million euros).
The directive will strengthen the effectiveness of cartel prosecution since companies and their employees will be required in future to cooperate to a certain extent in establishing the facts of a case.
The amendment lowers the requirements for ordering interim measures as a further step to improve the Bundeskartellamt’s ability to take faster and more efficient action in vulnerable markets.
(Bundeskartellamt - 19.01.2021)
NAZALI TAX & LEGAL