On 5 October 2020, representatives of Germany's federal government and the Federal Cartel Office (FCO) explained key points of the draft bill for the 10th amendment of the German Competition Act (also dubbed the 'GWB Digitalisation Act') before the Studienvereinigung Kartellrecht, the German competition lawyers’ association. The draft bill, which was endorsed by the federal government on 9 September, will now be introduced into the regular parliamentary process.
Given that the German Department of Trade (Bundesministerium für Wirtschaft und Energie) has recently consulted with the stakeholder community, not too many changes are expected as a result of the legislative process.
The draft bill is meant to transpose the EU ECN+ Directive into German law but goes far beyond this remit: it aims to give the FCO additional and novel tools to tame the market power of digital intermediaries and gatekeepers (see our previous blog post describing the new rule for more detail).
This is a development that has to be seen in parallel with the current efforts of the European Commission to introduce a Digital Services Act package, which will also contain regulatory and competition law rules, especially designed to enable the Commission to intervene more swiftly and efficiently in digital markets. This of course remains a very controversial area of legislation.
Further important changes to be brought about by the 10th amendment concern merger control, where essentially the thresholds defining reportability under the German rules will be raised so as to lower the numbers of transactions reportable to the FCO. At the same time, there will be new notification requirements for companies that are deemed to reduce competition through a series of small company acquisitions in certain markets.
Also there will be changes to the required co-operation of respondents to competition law investigations. While there was hitherto a complete right to remain silent (and in that sense unco-operative) under German law, these rules will now be adapted to the powers enjoyed by the Commission under Regulation 1/2003. This change will bring about enhanced co-operation duties for companies and natural persons targeted by a competition law investigation in Germany.
More detail is set out in our German-language briefing.