An Amendment with a Mixed Message

With the 12th Amendment to the GWB, the Federal Ministry for Economic Affairs and Energy aims to make the application of competition law more efficient, speed up procedures and, at the same time, relieve businesses of unnecessary bureaucratic burdens.

Taken as a whole, however, the picture is ambivalent: progress in procedures and digitalisation is offset by an extension or broadening of the authorities’ powers of intervention. A particularly critical point is that the far-reaching changes to measures following sector inquiries (Section 32f GWB) are not being addressed as part of this amendment, but were already included in the fuel measures package. Such a fundamental expansion of the Federal Cartel Office’s powers of intervention should have been discussed comprehensively as part of the ordinary legislative process, with the involvement of the business community.

Merger Control: The right approach, but not far-reaching enough

The planned increase in the turnover thresholds is, in principle, a step in the right direction. It takes account of the fact that the existing thresholds have not been adjusted to economic developments for years and often cover mergers that do not raise competition concerns.

At the same time, the adjustment remains too modest to bring about any noticeable relief. A significant proportion of transactions will continue to be covered, even though there are no competition concerns. In particular, the second domestic turnover threshold should be raised more substantially so as not to unnecessarily include minor acquisitions abroad, such as ancillary assets acquired as part of a deal, like a staff canteen, within the scope of German merger control.

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

The development of the transaction value threshold is particularly problematic. In future, companies that are not yet active in Germany but are expected to become so are also intended to be covered.

Consequently, formal merger control is increasingly shifting away from clear, objective criteria towards assessments of future market developments based on forecasts. For companies, this means greater legal uncertainty and an earlier point of scrutiny, often as early as in innovation-sensitive phases. The lack of clarity regarding the forecasting benchmark and the open-ended time horizon mean that the transaction value threshold is increasingly losing its status as a legally certain trigger criterion.

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

Special Regimes in Competition Law are on the Rise

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

Modernisation of Procedures and New Instruments

Measures to modernise procedures are to be welcomed. These include, in particular, ongoing digitalisation and adjustments to administrative competition proceedings. The extension of the competition authorities’ advisory services to cover vertical cooperation is also an important step. It can help to provide businesses with greater guidance on complex cooperation models and strengthen legal certainty.

Procurement screening also introduces a new tool that enables the Federal Cartel Office to systematically analyse procurement data in order to uncover bid-rigging. At the same time, contracting authorities are obliged to provide extensive data. Further clarification is needed here, particularly with regard to data use and the administrative burden.

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