Planned antitrust reform: opportunities or risks for medium -sized companies?
The antitrust law should get "claws and teeth".
The “Competition Enforcement Act” (11th GWB amendment) was adopted by the Federal Cabinet in early April 2023. The antitrust law is to be equipped with "claws and teeth" by the amendment. According to the Federal Government's announcements, "disorders of the competition in the interests of consumers should be better parked. Where the market structure conflicts with the competition - for example, because there are only a few providers in the market and regular price developments can be observed at the expense of consumers - the intervention instruments of antitrust law should be sharpened".
Essentially, three core issues of the amendment to the law can be identified:
Introduction of market intervention powers for the Federal Cartel Office including the authorization to unburden as an ultima ratio in competition disorders,
Reform of advantage,
Investigation of violations of the Digital Markets Act (DMA).
In any case, the planned changes justify a paradigm shift and tighten the application of German antitrust law. Read here whether this has more opportunities or risks for medium -sized companies.
1. According to the legislator, new market intervention powers for the Federal
Cartel Office are not sufficient in certain cases to solve market -structural problems in certain cases that could have competitive effects. The legislator therefore sees an additional instruments for supplementing the antitrust law, which enable the competition authorities to act against such market -structural problems, even if there is (still) no specific violation of antitrust law.
With the introduction of the new § 32f GWB-E, the Bundeskartellamt should be able to make remedial measures against companies working on the market by means of a general order. Examples of conceivable remedial measures can be found in Section 32f (3) GWB-E:
Granting of access to data, interfaces, networks or other facilities,
Specifications on the business relationships between companies on the markets examined and on various market stages,,
Obligation to establish transparent, non -discriminatory and open standards and standards by companies,
Specifications on certain forms of contract or contractual designs including contractual regulations for the leasing of information,
The ban on unilateral disclosure of information that favored a parallel behavior of companies,
The organizational separation of corporate or business areas.
As an ultima ratio, the Federal Cartel Office can even oblige business shares or assets with an outstanding cross -market importance for the competition according to §19a (1) GWB if it can be expected that this measure will remove the significant and continuous disturbance of the competition or significantly reduce. This should also be possible regardless of a violation of the affected company.
The new powers - paradigm shift and end of liberal restraint?
Antitrust law has so far been considered an instrument to preserve freedom of competition in the context of a social market economy. The antitrust law presented guidelines in which entrepreneurs could work on the market under ordo-liberal premises. Intervention of the state into the competition itself was not yet planned - apart from the controversial ministerial permit.
In the context of antitrust and market abuse ban and also the merger control, sector examinations have so far been used primarily to gain knowledge of the Federal Cartel Office in order to understand how markets work in selected industries. If the Federal Cartel Office determines during a sector examination that the competition is impaired on a market without a violation of existing antitrust law, it remains the pure statement.
And this now lies the novelty of the powers of intervention: they can be used even if the companies that work on the affected market behave in accordance with antitrust law. The addressees of a remedial measure not only consider market powerful companies, but also in accordance with Section 32f (32f (3) sentence 3 GWB-E also companies below the threshold. According to the justification of the law, the focus of the addressee is to be the behavior of companies that "contribute significantly to the disturbance of the competition in their specific expression. A violation of competition law by the relevant company is not necessary. An essential contribution is already in every behavior that is noticeable on the market."
Reactions to be expected to the draft law are widely apart
Proponents of the expanded intervention powers of the Federal Cartel Office argue that they are necessary in order to be able to combat market -structural causes of a disturbance of the competition. In the new regulation, they see a way to act against abuse of power and monopolies and thus promote competition. The new regulation could also take more effective and timely interventions to prevent negative developments in markets.
On the other hand, critics - especially from the economy - fear that the new regulation could lead to a restriction of entrepreneurial freedom and a deterioration in competitiveness. They argue that there are no sufficient reasons to intervene in internal decisions as long as there are no violations of antitrust law. In addition, they fear that the Federal Cartel Office is overwhelmed in the implementation of the new regulation and that preventive market structure control could be used politically.
2. Departure of advantage of cartel gains - now with "teeth"?
As a administrative measure in accordance with Section 34 GWB, the Federal Cartel Office can already skim economic benefits that a company has achieved by violating antitrust law. However, according to the current legal situation, the Federal Cartel Office must calculate the advantage actually obtained. Since these calculations are difficult in detail and thus offer attack potential for the companies concerned, this instrument has so far been largely meaningless.
The legislator would like to change this by expanding the existing regulations by an "presumption of benefits" in the draft law. According to this, it should be assumed that in the event of a antitrust violation, the economic advantage is at least 1 % of those sales that were generated in Germany with the product -affected product. With this generalization, it should make it easier for the Bundeskartellamt to make use of the skimming of benefits. In addition, the generalization of the exhaustion of advantage can be effective, especially where, due to stress, the assertion of claims for damages is not to be expected.
The defense options against the presumption of benefits are limited. According to draft law, it should not be brought up against the assumption that no economic advantage or an advantage has been incurred at a low amount. It can only be refuted insofar as the company has shown that neither the legal person directly involved in the violation nor the company has made a profit in a corresponding amount as a economic unit in the falling period. The hurdle for refuting the generalized advantage is very high, which is questionable under the rule of law. It will also be constitutional to check whether the proportionality is preserved with the flat rate of 1 %.
3. Powers for the implementation of the Digital Market Act (DMA)
The planned antitrust law reform should also serve to give the Federal Cartel Office of investigative powers in the event of possible violations of the European DMA (Ordinance 2022/1925 on punished and fair markets in the digital sector). The DMA provides for special competitive obligations for so-called “goalkeeper” companies that, according to the European Commission, provide a central platform service in the EU and have a significant impact on the internal market. According to Article 5 DMA, goalkeeper companies are subject to duties, for example, to use personal data from end users to strengthen their own market position in other markets than the platform service offered.
4. Opportunities and risks for medium -sized companies
for the situation of small and large medium -sized companies are in particular the planned powers of intervention by the Federal Cartel Office in the event of "disorders of the competition" a double -edged sword. Whether the possibilities have a positive or negative effect depends on the respective market position of the medium -sized company:
Due to the planned intervention powers, markets on which the competition is disturbed can (and should) be broken off. Medium -sized companies benefit from this by creating new business opportunities.
However, the planned intervention options are a lengthy path because a sector examination must first be carried out. After that, it is at the discretion of the Bundeskartellamt which remedial measures it wants to use for the affected market. As a rule, the companies working on the market concerned have no influence.
Medium -sized companies can also be addressees of the remedial measures. Because it is not the economic size of a company alone decides on the addressee position, but the respective market power of the company. Depending on the delimitation of a market, medium -sized companies can also have a dominant position or a relative market power. This also applies to the numerous hidden champions of German middle class.
The planned strengthening of the skimming of benefits can occur for medium -sized companies with a view to refuting the presumption of benefits and the necessary financial and human resources. In addition, the rule of law on the constitutionality of the flat rate for companies of all sizes apply equally.
Medium-sized companies as addressees are unlikely to be directly affected by the DMA's powers of the Federal Cartel Office. However, if a company is dependent on cooperation with a goalkeeper company in its work, it can be generally helpful for economic relationships to familiarize yourself with the rights and duties of goalkeeper companies according to the new DMA.
5. Outlook
already the rules of traditional antitrust law perceive some companies as an annoying obstacle in entrepreneurial action. Cartel law not only brings prohibitions, but can also open up useful design scope - even now and especially for medium -sized companies.
However, the current developments at the legislative level show that antitrust compliance is by no means a niche topic, but should always be taken into account. Because the tendency goes to a "more" competition rules and not to a "less".
