Digital antitrust law in Germany: one step ahead

The 11th Amendment to the Act against Restraints of Competition (“ARC”), which came into force on 7 November 2023, also introduces legislative changes intended to boost the enforcement of the Digital Markets Act (“DMA”) (see our Noerr News article). The new section 32g of the ARC gives Germany’s Federal Cartel Office the power to investigate designated gatekeepers for possible violations of Articles 5, 6 and 7 of the DMA. As provided for in the DMA, the Federal Cartel Office is thus able to support the European Commission, which is solely responsible for enforcing the DMA. Besides supporting the European Commission, this investigative power serves to distinguish between DMA proceedings and antitrust proceedings.

Alongside this, the private legal enforcement of the DMA is supported by changes to section 33 onwards of the ARC. The 11th Amendment to the ARC largely extends the mechanisms for facilitating private enforcement in antitrust cases (introduced to implement the Antitrust Damages Directive) to include breaches of the DMA. This extension applies to follow-on actions, for instance. On the other hand, the presumption of harm in the antitrust damages claim (first sentence of section 33a(2) ARC) has not been extended.

It will remain interesting to see how the DMA interacts with section 19a ARC. There will still be room for the Federal Cartel Office to apply section 19a ARC, especially where gatekeepers are subject to more comprehensive obligations under national antitrust law (see Article 1(6) DMA). The Federal Cartel Office’s decision on commitments in the Alphabet/Google’s data processing case (B7-70/21) illustrates how these provisions can work together in the future as well. In addition to closely coordinating its actions with the European Commission, the Federal Cartel Office limited its investigation under section 19a(2) ARC after the designation of Alphabet as a gatekeeper to services that were not designated as a core platform service.

In 2023, the Federal Cartel Office took action against Alphabet/Google in two further proceedings under section 19a(2) ARC. With regard to the news platform Google News Showcase (V-43/20), the Federal Cartel Office refrained from issuing a commitment decision after Google had made adjustments. One thing Google did was to abandon its very questionable plans to integrate Google News Showcase into the Google search. This means that the participation of press publishers in Google News Showcase will not affect the ranking of search results in general Google searches in future. The Federal Cartel Office is monitoring the implementation of the measures. The Federal Cartel Office also issued a warning to Google in relation to practices in connection with Google Automotive Services.

To date, the Federal Cartel Office has not yet issued a prohibition order (section 19a(2) ARC) against one of the companies it has classified as being of paramount significance to competition across markets. The antitrust concerns are to be eliminated by the measures taken.

In addition to Alphabet/Google, only Meta has so far been legally determined as being of paramount significance. The proceedings against Amazon and Apple have not yet been finalised, as both tech companies have lodged an appeal against the Federal Cartel Office’s determination with the Federal Court of Justice. On 28 March 2023, the Federal Cartel Office initiated the fifth proceedings in total to review Microsoft’s status as being of paramount significance.

This article is part of the Competition Outlook 2024. You can find all Competition Outlook articles here.