On 7 October 2019, the German Federal Ministry for Economic Affairs and Energy published the draft bill of the so-called digitization law which partly serves to implement the “ECN Plus” Directive into German law.
According to the new Sec. 19a ARC the German Federal Cartel Office ("FCO") may determine by way of a decree that an enterprise has paramount cross-market significance for competition. The new provision refers to multi-sided markets and companies such as Facebook, Google, Amazon which act as intermediaries and have access to data relevant for competition. The new provision further states that the FCO - after having once determined such cross-market significance - is entitled to prohibit certain practices of the respective enterprises (e.g. preferring own offers vis-à-vis offers of competing enterprises) without having to investigate and demonstrate the unfairness of the respective measure. Thus, the burden of proof for justifying the measure lies with the enterprises.
Moreover, the proposal intends to expand the specific German provision regarding abusive behaviour of companies with relative or superior market strength (Sec. 20 ARC) also to big companies in contrast to the status quo which only refers to small and medium enterprises. As regards private enforcement and cartel damage claims a new paragraph shall contain the (refutably) presumption that transactions with enterprises involved in a cartel are affected by the cartel if they fall in the scope of the cartel (regarding products, time and territory).
Furthermore, the second domestic turnover threshold for merger control notification in the sense of Sec. 35 para. 1 no. 2 ARC shall be raised from EUR 5 million to EUR 10 million in order to reduce the number of competitively unproblematic notifications. The proposal also includes several provisions to ensure acceleration of administrative procedures, regarding interim measures, oral instead of written hearings and the inspection of files. Moreover, in future, companies and their representatives shall be obliged to cooperate with the German competition authority as regards requests for information and submission of documents.
For further information please see the draft bill in German here.