DMA: Germany the test bench for complementarity with competition authorities

From the German side, it is clear that Section 19a of the Act against Restraints of Competition (ARC) will continue to exist. [nitpicker/Shutterstock]

The EU’s Digital Markets Act (DMA), flagship legislation targeting tech giants, will be complemented by competition authorities at the national level. In Germany, the powerful Bundeskartellamt is already claiming its space vis-à-vis the European regulator. EURACTIV Germany reports.

The EU regulation is expected to enter the full application in the spring of 2024 and could supersede national sector-specific laws with the same approach, once implemented.

In Germany, Section 19a of the Act against Restraints of Competition (ARC) is often referred to as the DMA’s blueprint, particularly as it has a similar scope of application.

“That is why it cannot be ruled out that part of Art 19a of the ARC will be harmonised, but that partial aspects will remain,” Andreas Schwab, the European Parliament’s rapporteur on the DMA, told EURACTIV, adding that competition-like relationships between national and European bodies could arise.

“If we can fix these additional national authorities to further help to enforce, perfect. But we should avoid some kind of competition between competition authorities – there is no need for that,” Schwab told the CRA conference in Brussels on 31 March. “We all need to look in the same direction,” he added.

Germany’s lawmakers have already taken up the issue. In a January report, the Bundestag’s scientific service found that the relationship between both pieces of legislation remained unclear, meaning companies could thus challenge the parallel application of EU and national laws before a court of law.

The DMA and Section 19a of the ARC have a lot in common.

“They have similar addressees, if not the same, and similar rules for those addressees. The differences lie in the details: The ARC is competition law, while the DMA goes beyond that and aims to promote contestability and fairness,” said Aline Blankertz, co-founder of the think tank SINE Foundation.

“Currently, the addressees of 19a ARC are most likely also affected by the DMA. In this case, it is effective that the cases are dealt with at the EU level, as EU-wide changes can be enforced,” Blankertz added.

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Bundeskartellamt unphased

From the German side, it is clear that Section 19a of the ARC will continue to exist.

“Even after the EU Digital Markets Act (DMA) has come into force, the Federal Cartel Office should still be able to take action against abusive conduct by companies with overriding cross-market importance for competition (Section 19a of the ARC),” the economy ministry’s competition policy agenda clarified.

The Bundeskartellamt, Germany’s anti-trust body, also seems unperturbed.

The DMA does not provide a veto right for the European Commission on proceedings of national competition authorities, which was removed precisely upon insistence from Berlin. As a result, it is still possible “to conduct proceedings under Section 19a of the ARC”, a Bundeskartellamt spokesperson told EURACTIV.

According to the anti-trust body’s president, Andreas Mundt, the DMA is an important building block for combating large digital companies more effectively and, above all, more quickly in the future.

“We have very firmly advocated that national competition authorities will continue to have a central role in the supervision of the large digital platforms in the future,” Mundt said at the CRA conference.

Mundt views the DMA’s adoption as a “tailwind” and looks forward to “further cooperation with the European competition authorities”. He added that German competition law is more flexible than the DMA and is at an advanced stage of application.

National regulators

National authorities, which can initiate investigations without enforcing final decisions as the Commission does, should complement the DMA, Mundt said. For the anti-trust chief, national regulators will play a key role, particularly in cases that have a national impact or are a low priority for the European Commission.

Because implementation is still a long time coming, Blankertz expects the Bundeskartellamt to initiate proceedings before then and at least conclude those already underway.

“However, it is desirable that the Commission and the Bundeskartellamt coordinate which cases are ongoing where in order to avoid inconsistent decisions,” Blankertz also said.

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[Edited by Oliver Noyan, Daniel Eck, Luca Bertuzzi]

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