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Introduction
Unilateral conduct by an undertaking with market power is governed by Sections 18, 19, 19a and 20 of the German Act against Restraints of Competition (ARC).1 These Sections prohibit the abuse of a (single or collective) dominant position (Section 19 ARC), specific types of abusive behaviour by undertakings that have relative market power in relation to dependent trading partners (Section 20 ARC)2 and certain types of conduct by undertakings with 'paramount cross-market significance' (Section 19a ARC).
Only two and a half years after the 10th Amendment to the ARC (the ARC Digitisation Act), the 11th Amendment to the ARC (the Competition Enforcement Act) entered into force on 7 November 2023.3 The centrepiece of the most recent Amendment is the introduction of the German 'New Competition Tool': It allows the FCO, following a sector inquiry, to remedy an identified 'significant and persistent distortion of competition' through the imposition of behavioural and structural measures. The 11th Amendment also lowered the requirements for the absorption of an economic advantage resulting from an antitrust offence. Interestingly, only one day before the 11th Amendment entered into force, the Federal Ministry of Economics and Climate Protection (BMWK) had already announced the 12th Amendment to the ARC.4 The 12th Amendment is expected to be introduced before the end of the current legislative period (i.e., by 2025).5
