Consultation on the 12th amendment to the ARC
- Immo Schuler
- Nov 15, 2023
- 2 min read
Updated: Oct 21, 2024
The 11th amendment to the ARC has just come into force and the consultation on the 12th amendment to the ARC has already begun
The year 2023 had a lot to offer in terms of antitrust law. On November 7, 2023, the 11th amendment to the ARC came into force. One day earlier, the Federal Ministry for Economic Affairs and Climate Action (BMWK) launched a consultation for the 12th amendment to the ARC.
Time for a retrospective outlook.
11th Amendment to the ARC
The 11th amendment to the ARC led to some tightening of antitrust law.
Possibilities for intervention following sector inquiries. Whereas sector inquiries previously had no consequences, the Federal Cartel Office can now take remedial measures in sector inquiries if a significant and ongoing disturbance of competition is identified, i.e. remedial measures, such as the granting of access to data or the obligation to establish non-discriminatory norms and standards, are listed in Section 32f (3) ARC.
Under certain conditions, sector inquiries can also lead to mergers below the turnover thresholds of Section 35 ARC being subject to notification.
Facilitation of benefit skimming in the event of antitrust violations. While benefit skimming did not previously play a role in German antitrust law, this has been changed by the double presumption rule included in Section 34 (4) ARC. It is presumed that (i) an antitrust violation leads to an economic advantage and that (ii) this advantage amounts to at least 1% of the domestic turnover involved. The presumption should not apply if the obtaining of an advantage is excluded due to the particular nature of the infringement and should then be rebuttable if it is proven that no group-wide profit in this amount was achieved.
Procedural rules for the enforcement of the DMA. Only the European Commission can establish a breach of the Digital Markets Act (DMA). However, the German Federal Cartel Office can itself conduct investigations into possible violations of the DMA by a gatekeeper (Section 32g ARC). In addition, the provisions on the enforcement of private antitrust claims for damages have been extended to include violations of the DMA. The chapter “DMA as the subject of private enforcement” in the book “Das Neue Recht der digitalen Märkte”, written by Henner Schlaefke and myself, is highly recommended for the private enforcement of claims based on breaches of the DMA.
12th Amendment to the ARC
The 12th amendment to the ARC could bring about changes in the following areas, among others:
Merger control. Readjustment of the formal intervention thresholds and the substantive standard of review.
Consumer protection. Possible power of antitrust law to remedy significant, persistent and repeated infringements of consumer protection law.
Sustainability. Consideration of sustainability aspects when assessing (and exempting) a breach of antitrust law.
November 15, 2023
Immo Schuler, LL.M. (UNC)
Immo Schuler advises on all questions of German and European antitrust law.
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