Amendment with a Mixed Impact

With the 12th Amendment to the Act Against Restraints of Competition (GWB), the Federal Ministry of Economics aims to streamline the application of antitrust law, expedite proceedings, and at the same time relieve companies of unnecessary bureaucratic burdens.

Taken as a whole, however, the picture is mixed: progress in procedures and digitization is offset by an extension or expansion of the authorities’ powers of intervention. Particularly concerning is that the far-reaching changes to measures following sector inquiries (Section 32f GWB) were not adopted as part of this amendment but were already decided upon as part of the fuel measures package. Such a fundamental expansion of the Federal Cartel Office’s powers of intervention should have been discussed comprehensively in the ordinary legislative process, with full involvement of the business community.

Merger Control: The Right Approach, but Not Far-Reaching Enough

The planned increase in the revenue thresholds is, in principle, a step in the right direction. It takes into account the fact that the existing thresholds have not been adjusted to economic developments for years and frequently cover mergers that pose no competition concerns.

At the same time, the adjustment remains too modest to achieve any noticeable relief. A significant portion of transactions will continue to be covered, even though there are no competition concerns. In particular, the second domestic revenue threshold should be raised more significantly to avoid unnecessarily subjecting minor acquisitions abroad—such as ancillary assets acquired as part of a transaction, like a company cafeteria—to German merger control.

Transaction Value Threshold: More Forecasting at the Expense of Legal Certainty

The further development of the transaction value threshold is particularly problematic. In the future, companies that are not yet active domestically but are expected to become so will also be subject to review.

As a result, formal merger control is increasingly shifting from clear, objective criteria toward forecast-based assessments of future market developments. For companies, this means greater legal uncertainty and an earlier review stage—often as early as innovation-sensitive phases. The unclear forecasting criteria and the open time horizon mean that the transaction value threshold is increasingly losing its character as a legally certain trigger criterion.

The new notification procedure reinforces this trend. Even if it is designed to be optional, there is a risk of an additional preliminary review stage without any reliable relief effect resulting from it. Companies would then have to prepare extensive information at an early stage without being able to reliably assess whether a full notification will still be required. In cases where notification is required, this would effectively result in a prolongation of the proceedings.

Special regimes in antitrust law are on the rise

The temporary special oversight of abusive practices in the energy sector (Section 29 GWB) is to be extended once again. This continues a trend in which measures that were originally intended to be temporary are becoming permanent. At the same time, there is a growing tendency to introduce additional sector-specific instruments, such as § 29a GWB. This could lead to a fragmentation of antitrust law and increasingly erode the unified regulatory approach of a cross-sectoral competition framework.

Procedural Modernization and New Instruments

Measures to modernize procedures deserve special mention. These include, in particular, ongoing digitization and adjustments to administrative antitrust proceedings. The expansion of the antitrust authority’s advisory services to include vertical cooperation is also an important step. It can help provide companies with greater guidance on complex cooperation models and strengthen legal certainty.

With the introduction of procurement screening, a new tool is being implemented that enables the Federal Cartel Office to systematically analyze procurement data in order to uncover bid-rigging. At the same time, contracting authorities are required to submit extensive data. Further clarification is needed here, particularly with regard to data use and administrative burdens.

It is crucial for the business community that antitrust law remains a reliable and predictable framework. This includes clear criteria, legally sound procedures, and the consistent further development of key instruments.