GER: Amended GWB to Modernise Competition Law

Jan 5, 2024 Benn-Ibler Rechtsanwälte

The 11th amendment to the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkung) is a response to the critical price developments following Russia’s attack on Ukraine and a further step towards modernising competition law. The amendment provides the German federal competition authority, the Bundeskartellamt, with additional instruments to intervene where competition is not functioning properly.

In future, competition will be strengthened in markets with only a few players. The recent crisis has clearly shown that small businesses and consumers bear the brunt of disrupted competition.

As in the past, the first step is to conduct a sector inquiry. The sector inquiry enables the competition authorities to gain important insights into the competitive situation in certain sectors of the economy in the markets under investigation. These sector inquiries do not target individual companies and do not investigate specific suspicions of cartel behaviour. In the past, a sector inquiry only resulted in a report. In a second step, however, it is now possible to establish a violation of competition law and to issue a cease-and-desist order against a specific addressee. In a third step the Bundeskartellamt now has the possibility to order the addressee of the previously issued declaratory judgement to take remedial action in order to eliminate or reduce the impairment. This makes it easier for new competitors to enter the market and directly combats tacit agreements between the major suppliers in a market.

The new measures are designed to be effective in cases where competition is not functioning properly but no cartel or abuse of dominance proceedings are possible.

Similarly, a newly introduced presumption rule will simplify the process of benefit skimming.

These amendments took effect 1 September 2023.

Press release, Bundeskartellamt on the amendment of the Gesetz gegen Wettbewerbsbeschränkungen (7 November 2023)