On 19 January 2021, the 10th amendment to the German Competition Act entered into force. A key element of the amendment is the modernisation of the competition authorities’ control of abusive conduct – which is mainly focused on the need for fast and effective action in light of the rapid growth of large digital platforms. The Bundeskartellamt will under the new Act be able to take preventive measures and prohibit conduct such as self-preferencing of a group’s own services or impeding third companies from entering the market by processing data relevant for competition. The traditional abusive control provisions are also modernised and further specified by adding internet-specific criteria and making clear, for example, that access to data is relevant for competition and might lead to market power. Germany is the first to implement such measures; in the EU similar tools are still being discussed.
As to cartel prosecution, the amendment implements the ECN Plus Directive which is in place at EU level. In line with this Directive, companies and their employees will be required in the future to cooperate to a certain extent in establishing the facts of the case. The amendment also includes several new provisions regarding administrative fines and provisions on the leniency programme – which was not yet enshrined in law prior to this amendment.