Germany: private practice perspective

Overview

The German Competition Act (GWB) was last modernised with the implementation of the 10th GWB amendment (GWB Digitalisation Act) coming into force on 19 January 2021. The ground for the 10th GWB amendment was Germany's obligation to implement Directive 2019/1/EU (also referred to as the ECN+ Directive). The Directive is geared towards antitrust proceedings predominantly and shall empower the European competition authorities to fulfil their tasks in enforcing Union competition rules more effectively. With the implementation of the Directive, the Bundeskartellamt received new powers of investigation and extended rights in administrative proceedings to impose fines. In addition, the leniency programme is now enshrined in law. The federal government took the Directive as an opportunity to make further amendments to the GWB with the Federal Ministry of Economics and Technology (BMWi) setting the focus in the area of digitalisation.

One of the most important provisions of GWB Digitisation Act is the modernisation of the rules of abuse control providing for a stricter approach with respect to so-called undertakings of ‘paramount significance of an undertaking for competition across markets’ (section 19a GWB). This new provision was designed against the background of the powerful digital tech companies and therefore the need for a more effective set of tools for the Bundeskartellamt, particularly by enabling an earlier intervention, a thereby more efficient control, and the possibility to impose special duties of conduct on such undertakings.

Moreover, provisions of the classical abuse control were modernised by introducing internet-specific criteria. For example, section 18(3b) GWB provides for criteria to be taken into account in assessing the market position of an undertaking in cases of multi-sided markets and networks, while section 18(3a) GWB further refers to the market position of undertakings acting as an intermediary on multi-sided markets. Furthermore, the so-called essential facility doctrine in Section 19(2) No. 4 GWB was reworded taking into account latest developments in EU practice and case law. Also, the scope of protection of section 20(1) GWB, which addresses prohibited conduct of undertakings with relative market power, now extends to large companies, as such companies may also be dependent on digital platforms. Additionally, Section 20(1a) GWB now regulates a claim to data access in certain constellations in which access to data is of particular importance from a competition perspective. Finally, section 20(3a) GWB introduces a new element of intervention to reduce competition problems caused by the so-called ‘tipping’ of markets.

Unilateral conduct

The crucial mechanism of the new section 19a GWB is that it focuses on effectiveness through prevention. This goes back to the Bundeskartellamt’s practical experience in proceedings against the big tech companies and the conclusion drawn therefrom by the German legislator that the previous legal situation had not prevented the consolidation of the positions of these companies.

Section 19a GWB is a modern tool providing for a two-stage procedure: at the first stage (section 19a(1) GWB) the Bundeskartellamt may issue a decision declaring that an undertaking that is active to a significant extent on markets within the meaning of section 18(3a) GWB is of paramount significance for competition across markets. The validity of such a decision is limited to five years after it becomes final. At the second stage (section 19a(2) GWB), the Bundeskartellamt may prohibit such undertaking from engaging in certain types of conduct. The legislator has opted for a legally exhaustive list and considered a total of seven practices: the first type of conduct concerns self-favouring (ie, in particular giving preference to one’s own offers in the presentation or exclusively pre-installing one’s own offers on devices or integrating them in any other way in offers provided by the undertaking). The second type of conduct concerns the impediment of other undertakings in carrying out their business activities on supply or sales markets where the undertaking’s activities are of relevance for accessing such markets.

The third type of conduct addresses the so-called ‘rolling up’, that is, the prevention of the expansion of the market position, in particular if the use of an offer of the undertaking is combined with an automatic use of another offer of the undertaking that is not necessary for the use of the former offer, without giving the user of the offer sufficient choice as to whether and how the other offer is to be used.

The fourth type of conduct refers to certain types of data use. An undertaking may be prohibited from creating or appreciably raising barriers to market entry or otherwise impeding other undertakings by processing data relevant for competition that have been collected by the undertaking, or demanding terms and conditions that permit such processing, in particular to make the use of services conditional on users agreeing to the processing of data from other services of the undertaking or a third-party provider without giving users sufficient choice as to whether, how and for what purpose such data are processed, or to process competitively sensitive data received from other undertakings for purposes other than those necessary for the provision of its own services to these undertakings.

The fifth type of conduct concerns the impediment of interoperability of products or services or data portability. This alternative overlaps with data protection. The Bundeskartellamt may prohibit an undertaking from refusing or impeding the interoperability of products or services or data portability, or making it more difficult, and in this way impeding competition.

The sixth type of conduct addresses prohibitions the area of withholding information. An undertaking may be prohibited from providing other undertakings with insufficient information about the scope, quality or success of the service rendered or commissioned, or otherwise making it more difficult for such undertakings to assess the value of this service.

The seventh type of conduct aims in a similar direction, according to which the Bundeskartellamt may prohibit to demand benefits for handling the offers of another undertaking which are disproportionate to the reasons for the demand, in particular to demand the transfer of data or rights that are not absolutely necessary for the purpose of presenting these offers, or to make the quality in which these offers are presented conditional on the transfer of data or rights which are not reasonably required for this purpose.

Another special feature of section 19a GWB is that the burden of proof that the respective conduct is objectively justified rests with the undertaking of paramount significance (section 19a(2)2 and 3 GWB).

Finally, it is important to highlight the newly introduced section 73(5) GWB, pursuant to which it is now for the Federal Court of Justice (Bundesgerichtshof) alone to decide in the first and last instance on all disputes against decisions of the Bundeskartellamt under section 19a GWB. This, once again, clearly shows the intention of the legislator to increase the effectiveness and accelerate the enforcement of abuse control provisions.

Current proceedings of the Bundeskartellamt under section 19a GWB

Within less than five months after the implementation of the newly introduced section 19a GWB, the Bundeskartellamt has ‘made good use of this provision’, according to Andreas Mundt, President of the Bundeskartellamt. It initiated four proceedings on the basis of section 19a GWB against the so-called GAFA companies (Google, Amazon, Facebook and Apple).[1] From the federal government’s point of view, the proceedings are considered to have an enormous significance for German (and EU) competition policy and a high practical relevance. All these procedures have in common that the companies are suspected of having set up an ecosystem that extends across various markets. Such positions of power are often difficult to challenge by other companies and are therefore considered to be indicative of a paramount significance across markets.

In the case of Facebook, the Bundeskartellamt is examining such an ecosystem in view of its strong market position with its social network, WhatsApp and Instagram. The Bundeskartellamt sees this as an extension of the proceedings already initiated against Facebook in December 2020, in which it is investigating the linking of Oculus virtual reality products with the social network and the Facebook platform.

In the proceedings against Google, such an ecosystem is suspected in digital services such as the search engine, YouTube, Maps, the Android operating system or the Chrome browser. However, the Bundeskartellamt seems to have little doubt about Google’s paramount significance across markets, as while initiating the first stage proceedings under section 19a(1) GWB in order to determine such position, it simultaneously initiated the second stage proceedings under section 19a(2) GWB to prohibit specific conduct. The Bundeskartellamt announced that it would deal in detail with Google’s data processing conditions in these proceedings. The central question will be whether consumers are entitled to sufficient choice regarding the use of their data by Google when using Google services. Specifically, the Bundeskartellamt intends to examine whether Google makes the use of its services conditional on consent to data processing without giving the user sufficient choice as to whether, how and for what purpose such data are processed. This is an example of conduct specifically mentioned by section 19a(2) No. 4a GWB, which the Bundeskartellamt may prohibit for an undertaking with paramount significance across markets.

In the proceedings against Amazon, the Bundeskartellamt is examining the paramount cross-market significance with regard to Amazon’s online marketplaces and many other, in particular digital, offers. There are furthermore two other proceedings against Amazon under abuse control provisions that were already in force before the 10th GWB amendment: The first proceeding addresses the question of the extent to which Amazon uses price control mechanisms or algorithms to influence the pricing of traders operating on the Amazon marketplace. In the second proceeding, it will be investigated whether agreements between Amazon and brand manufacturers, including Apple, which exclude third-party retailers from selling branded products on the Amazon marketplace constitute a competition infringement.

In the case of Apple, the Bundeskartellamt is examining a digital ecosystem established over several markets around the iPhone with the operating system iOS. The group’s position is being investigated in particular in the area of hardware products (iPhone, tablets, computers and wearables) and in the area of hardware-related services (App Store, iCloud, AppleCare, Apple Music, Apple Arcade, Apple TV+). The Bundeskartellamt announced that it will focus its investigations in particular on the App Store, which enables Apple to influence the business activities of third parties. In addition, the authority intends to look into the far-reaching integration across several market levels, Apple’s technological and financial resource strength as well as its access to data. Moreover, further proceedings are already in prospect. It is expected that future proceedings will, in particular, address potentially anticompetitive behaviour of these companies. In this context, the Bundeskartellamt has received various complaints from associations and app developers against specific practices of Apple. The authority therefore specifically intends to review Apple’s tracking restrictions on users in connection with the introduction of the iOS 14.5 operating system, the exclusive pre-installation of the group’s own applications (which may constitute a self-favouring prohibited under section 19a(2) No. 1b GWB), the obligation to use Apple’s own system for in-app purchases (IAP) and the commission rate of 30 per cent, as well as the marketing restrictions in the App Store.

Practical advice

With the GWB Digitisation Act and the newly introduced section 19a GWB, the Bundeskartellamt now has access to a modern set of instruments that stands out in an international comparison and is suitable as a starting point to enable effective antitrust regulation of GAFA companies, which are omnipresent in a large number of markets. However, it can be expected that the Bundeskartellamt will keep a wary eye also on other (non-GAFA) companies’ positions and conduct, which will have to expect proceedings within the scope of section 19a GWB in the future. The addressees of both the declaratory order (section 19a(1) GWB) and the preventive prohibition order (section 19a(2) GWB) are undertakings that are active to a significant extent on markets within the meaning of section 18(3a) GWB (ie, on multi-sided markets and networks).

It furthermore remains to be seen how the courts will position themselves on the proceedings initiated by the Bundeskartellamt and the new regulations. In view of the legislator’s certainly not unconscious decision to formulate broad areas of application, it can be expected that decisions issued by the Bundeskartellamt will not always be in line with the case law on the previous abuse control. It will be the task of the Bundesgerichtshof, on the one hand, to give effect to the overriding intention of the legislator pursued by the GWB Digitalisation Act and, on the other hand, to comply with the restraint in the application of the provision expressed in the explanatory memorandum to the Act, at least with regard to the delimitation of the group of addressees of section 19a GWB.

Finally, it has to be pointed out that the importance of the provisions for the protection of digital markets is not exhausted by the abuse control by the Bundeskartellamt. Section 20(3a) of the GWB also gives competing companies the opportunity to prevent markets from being tipped in the direction of a particular bidder. The first notable case of this kind is a preliminary injunction proceeding that was conducted before the Berlin Regional Court between two real estate portals (judgment of 8 April 2021, 16 O 73/21 Kart – Rabatt bei Immobilienanzeigen). The Court prohibited the market leader from using certain discount rates that had denied a competitor access to certain customers and customer data for the decisive phase of the real estate purchase.

Mergers

With the GWB Digitisation Act coming into force on 19 January 2021, the legislator has further reformed individual aspects of merger control with regard to both procedural and substantive issues.

The arguably most important change is that the thresholds for the obligation to notify mergers were increased. While the combined aggregate worldwide turnover of all the undertakings concerned remains more than €500 million, the domestic turnover of at least one undertaking concerned increased from €25 million to €50 million and that of another undertaking concerned from €5 million to €17.5 million. Also, the so-called minor market clause of section 36(1) sentence 2 No. 2 GWB was increased from €15 million to €20 million.

While in 2019 and 2020, a total of 2,683 mergers were notified to the Bundeskartellamt, the number of mergers to be examined is expected to decrease significantly in the future. The rationale behind the increase of the threshold was to relieve the burden on the economy, especially on small and medium-sized enterprises, as well as to enable the Bundeskartellamt to focus its capacities more strongly on complex cases, especially in the area of digitalisation.

Furthermore, section 39a(1) GWB was introduced, which is an instrument to enable the Bundeskartellamt to take action before a dominant position of large companies arises in certain markets. The extended notification obligation relates to specific economic sectors to be designated by the Bundeskartellamt. Accordingly, the Bundeskartellamt can require companies to notify mergers where the company to be acquired has a worldwide turnover of more than €500 million, there are objectively verifiable indications that future concentrations could substantially impede effective competition in Germany in the sectors of the economy specified, and the undertaking supplies or procures at least 15 per cent of the goods or services in the sectors of the economy specified in Germany. However, the obligation to notify only applies to concentrations where the undertaking to be acquired achieved a turnover of more than €2 million in the last business year and achieved more than two-thirds of its turnover in Germany.

Moreover, section 35(1a) GWB, which was already introduced in 2017 as part of the 9th GWB amendment, is a transaction value threshold. This threshold has enabled the Bundeskartellamt to examine further mergers in innovation-driven markets without causing major compliance costs for business. However, according to the annual report of the Bundeskartellamt, no in-depth competition investigation has yet been initiated as a result of the notification of a transaction value threshold case and thus no merger has yet been prohibited. A so-called ‘killer acquisition’ has also not yet been identified or prevented.

Cartels

Despite more difficult conditions during the pandemic, the Bundeskartellamt uncovered several cartel agreements according to its Annual Report of 2020.[2] During the reporting period, the Bundeskartellamt imposed fines totalling €847.4 million in 2019 and €349.4 million in 2020. This reportedly corresponds to the second and fourth highest values in the last 10 years. Two of the most important cartels the authority was investigating concern anticompetitive agreements among aluminium forges and proceedings against wholesalers of plant protection products.

This trend is expected to continue in the future, as according to Andreas Mundt, President of the Bundeskartellamt, the authority ‘invest[s] many resources in cartel prosecution. It is and will remain a focus of the Bundeskartellamt’s work. Because cartels harm the economy as well as consumers by artificially inflating prices, lowering quality and stifling innovation.’

However, it has also been confirmed by the Bundeskartellamt that the number of leniency applications declined. It is assumed that this is at least also due to the exposure to cartel damages claims against cartelists.

As far as cartel damages claims are concerned, the Bundeskartellamt reports a decline in civil cartel actions and actions for damages. This is attributed in particular to the reduced number of new actions relating to the Truck cartel. Nevertheless, private lawsuits have made a significant contribution to the enforcement and further development of cartel law and jurisprudence on that matter in Germany.            

Market investigations

The digital economy remains a top priority for the Bundeskartellamt. As described above, the focus in numerous proceedings already conducted in this area was in particular on the GAFA companies.

However, the Bundeskartellamt is moreover actively investigating digital markets, conducting a sector inquiry in the area of online advertising. While the authority intends to examine the technical background and foreseeable developments of online advertising on the market structure and the market opportunities of the various players, the investigation will also address whether closed systems of a few large providers exist (gatekeeper positions or so-called ‘walled gardens’) and what significance these systems may have.

Other sector inquiries of the Bundeskartellamt concern household waste collection, the hospital sector and public charging infrastructure.

Procedure

The GWB Digitalisation Act has also been significantly influenced by developments at the European level. With the proposal for a Digital Markets Act (DMA) published in December 2020 aiming at contestable and fair markets in the digital sector, the European Commission presented a tool which is closely related to the objective of competition law. The target group of the draft regulation is large online platforms, which are to be classified under the guiding term ‘gatekeeper’ on the basis of certain criteria. These criteria include a strong economic position with a significant impact on the internal market, a strong position as an intermediary (between many users and companies), as well as an established and lasting market position, possibly also in the future.

The heads of the national competition authorities organised in the European Competition Network (ECN), among them Andreas Mundt, President of the Bundeskartellamt, have agreed in a joint paper on the role of national competition authorities in the enforcement of the DMA. The paper advocates for a complementary enforcement of the rules at national level, which should supplement the established (national) competition law. The aim is to address ex ante some of the most harmful and prevalent gatekeeper behaviours, thereby enhancing the preventive effect of existing (national) rules and jurisprudence.[3]

The year ahead

The programme has been set by the Bundeskartellamt for the coming years as described above. It remains to be seen in what time frame and to what extent of success the Bundeskartellamt will enforce its policy.

[1] For the Google proceeding see Bundeskartellamt’s press release of 25 May 2021, for the Amazon proceeding Bundeskartellamt’s press release of 18 May 2021, for the Facebook proceeding see Bundeskartellamt’s press release of 28 January 2021, and for the Apple proceeding see Bundeskartellamt’s press release of 21 June 2021.

[2] Available on the Bundeskartellamt’s website at https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Jahresbericht/Jahresbericht_2020_21.html?nn=5311338.

[3] The joint paper of the heads of the national competition authorities of the European Union is available on the Bundeskartellamt’s website at https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Others/DMA_ECN_Paper.html?nn=3591568.

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