Competition law changes for large digital companies and medium-sized enterprises (10th Amendment to the German Act Against Restraints of Competition)
Prohibitions directed at digital companies “with signiﬁcance for competition across markets”
If the Federal Cartel Ofﬁce (FCO) determines that digital companies are of “paramount signiﬁcance for competition across markets” then, in future, it will be able to bar them from:
- ... favouring their own offerings over those of the competition when facilitating access to procurement and sales markets (so-called self-preferencing);
- ... hindering competitors in markets where they could quickly expand their positions;
- ... using data that they have collected, which are relevant for competition, to hinder other companies;
- ... making it difﬁcult to proﬁt from user data and, as a result, to hamper competition.
Exemptions for medium-sized enterprises
In future, mergers will only be subject to merger control by the FCO if the companies concerned generate annual sales in Germany of at least € 10m (previously this was € 5m).
Mergers cannot be prohibited if the reasons for a prohibition merely affect minor markets with a volume of up to € 20m (instead of € 15m previously).
Please note: Medium-sized enterprises will therefore gain greater ﬂexibility for consolidation measures, in particular, in shrinking markets.
Legal certainty will be increased for companies that wish to cooperate. In the future, companies will be entitled to request an antitrust assessment of cooperation by the FCO if there is a substantial legal and economic interest in such an appraisal. Furthermore, a legal basis will be created for the so-called Vorsitzendenschreiben [literally chairman letters, or guidance documents that record the conclusions of consultations with the FCO] with which the authority can informally give cooperations the green light.
Please note: In addition to the prohibitions mentioned in Sec. 1, under facilitated conditions, the FCO will, in future, be able to issue interim measures in order to protect competition. With regard to the cooperations covered in Sec. 2, legal certainty has been created, in particular, for purchasing and sales cooperations between medium-sized competing enterprises.