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Act Against Restraints of Competition Amendment: "Digitization" in Competition, Antitrust and Merger Control

On January 19, 2021, the 10th amendment to the Act Against Restraints of Competition ("GWB"), the "GWB Digitization Act," came into force. The central regulatory subject of the amendment is the new abuse control for the digital economy. A dominant market position of a company that permits intervention by the antitrust authorities can now also lie in access to competitively relevant data, or in the position of a company as an intermediary on multilateral markets, especially on Internet platforms. The German Federal Cartel Office (Bundeskartellamt, "BKartA") decides which companies have an overriding importance for competition across markets, e.g., through their access to data and resources, through network effects, or due to their strategic position. This will primarily affect the major technology groups Google, Facebook and Amazon. What is new is that preventive measures can now also be taken against these companies after a corresponding market position has been established. Among other things, the BKartA can prohibit them from giving themselves preferential treatment in advertising or search results or from taking other measures to impede competitors' access to the market.

There are also some significant changes away from digitization. In merger control, the Germany-wide turnover thresholds of the companies involved will be increased. In the future, among other things, one company must generate sales of at least 50 million Euros in Germany (previously 25 million Euros) and another at least 17.5 million Euros (previously 5 million Euros) in a merger to trigger a duty to control. This eliminates the notification requirement for smaller corporate transactions.

Very welcome is the possibility of obtaining a formal decision from the BKartA in the case of horizontal cooperation between companies, i.e. between competitors, according to which the BKartA sees no reason to take action. This makes it possible to create a certain degree of legal certainty simply and quickly.

There are also new regulations for access to files in ongoing antitrust proceedings. This will facilitate claims for damages in the event of cartel agreements. The law now also contains a catalog of criteria for the assessment of fines imposed by the BKartA. In particular, fines can be reduced by internal company compliance measures in the run-up to the infringement or after it has been discovered. Finally, the amendment to the GWB will legally regulate the "leniency program" already practiced to date; according to this, the BKartA can grant cartel participants who have contributed to uncovering a cartel through their assistance and cooperation total immunity from fines or at least a reduction in fines.

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