Competition Outlook 2023

In this Competition Outlook, Noerr’s Antitrust & Competition practice group provides you with a summary of the most important developments in European and German competition and antitrust law in 2022, focusing on the most prominent issues, and gives an overview of the developments we can expect in these areas in 2023.

Topics relating to digitalisation once again played a special role in antitrust and competition issues in Germany and Europe throughout 2022. In Germany, the Federal Cartel Office is continuing to apply section 19a of the German Act against Restraints of Competition (“Competition Act”), introduced as part of the 10th amendment to the Competition Act, and this will also have a crucial impact in 2023. At a European level, last year saw the adoption of the new Digital Markets Act (“DMA”), which gives the European Commission extensive powers to monitor corporations classified as “gatekeepers”. The new year will reveal which areas the DMA will be applied to first and how it interacts with section 19a of the Competition Act.

In addition, competition and antitrust law in 2022 was influenced to a great extent by Russia’s aggression against Ukraine and its repercussions. The Federal Cartel Office issued decisions on crisis-induced co-operations necessitated by possible gas shortages. Rising electricity, gas and fuel prices were also one of the motivations for the German legislator to prepare further changes to national competition law. The latest draft of the 11th amendment to the Competition Act sets out far-reaching powers of the Federal Cartel Office to intervene in oligopolistic markets that extend beyond the known merger and abuse of dominance controls. It will certainly be interesting to see how these intended powers take shape during the legislative process in 2023.

Last year, European State aid law was also forced to react to fallout from the war in Ukraine and the resulting negative effects on the economies of the Member States. The Temporary Crisis Framework, a regulatory instrument created for this purpose, is initially scheduled to apply until 31 December 2023. Alongside this, the new EU Foreign Subsidies Regulation will come into effect starting in July 2023, establishing yet another regulatory hurdle that companies will have to overcome during transactions on top of
the standard merger and foreign direct investment controls.

By contrast, the tidal wave of effects of the coronavirus pandemic, which has also left its mark on antitrust and competition law over the last few years, seems to be ebbing away. One key consequence in 2022 was that the competition authorities resumed carrying out dawn raids at companies to investigate antitrust infringements. We can expect this trend to continue in the new year.

These are just a few of the many topics dealt with in our Competition Outlook, which also include the latest developments in the areas of antitrust law governing sales and distribution matters, cartel damages and foreign direct investment controls.