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The 10th Amendment to the German Act Against Restraints of Competition - Focus on: Digital markets and ECN+ Directive

On Thursday, 14 January 2021, the German Federal Parliament (Bundestag) finally adopted the 10th Amendment to the German Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen; GWB).

Dubbed the GWB Digitalisation Act, it is in fact an updated version of the government’s original bill introduced by the Committee on Economic Affairs substantially amended at the last minute. The German Federal Council (Bundestag) endorsed it on 18 January 2021. It was promulgated on the same day and entered into force on 19 January 2021.

The law sets down a new framework for allowing the German economy to enter the digital age. Following the proposals made by the (reform) commission established by the Federal Ministry for Economic Affairs and Energy (Bundesministerium für Wirtschaft und Energie) in 2018, the Act establishes a focussed, proactive and digital “competition law 4.0”, this is shorthand for a set of rules focussing on the “data economy, platform markets and ‘industry 4.0’”. In this context, a new instrument for regulating market power abuse below the level of market dominance has been developed in order to enable the German Federal Cartel Office (Bundeskartellamt; FCO) to react more quickly to a build-up of market power in the digital sector. Data access regulations aim to promote innovation and keep markets open. The enforcement of antitrust law has received a boost through the transposition of the ECN+ Directive and the smoothing out of certain perceived hindrances in the plaintiff’s path to successful follow-on damages actions. Finally, merger control has been scaled back at its lower end.

The following pages offer a summary of the key new features and our comments on their implications in practice.