The 11th GWB Amendment („Competition Enforcement Act”) has entered into force - Will the new Act result in “competition law with claws and teeth”?
Only two years after the Competition Digitisation Act gave the German Federal Cartel Office (FCO) unprecedented investigative powers, the Competition Enforcement Act – which entered into force on 7 November 2023 – once again aims to strengthen the powers of Germany’s competition watchdog, equipping it, inter alia, with sharpened enforcement powers.
The 11th GWB Amendment significantly expands the FCO’s options for intervention and introduces a new dimension – a fourth pillar – to German competition law through remedies which can be imposed following sector inquiries. Remarkably, these enforcement powers may be used in the absence of a competition law infringement or any individual wrongdoing of a company – a novelty that some are calling a “paradigm shift”.
Moreover, the Competition Enforcement Act aims to reduce the legal hurdles for the FCO to confiscate from infringing companies the economic benefits they have obtained from infringements of competition law, shifting the burden of proof to the companies by introducing two rebuttable presumptions regarding the causality and the amount of the benefits to be confiscated.
Finally, the Competition Enforcement Act is also intended to ensure the enforcement of the EU DMA by the national competition authority. Hence, the FCO is authorised to conduct its own investigations of possible infringements of Articles 5, 6, and 7 DMA (public enforcement) and to further ensure private enforcement.
Our Client Briefing provides a detailed overview of the amendments and their enforcement risk and likely implications for companies in more detail.
You can find it below.