German Antitrust Law

Statutory Framework

German competition law is codified in the Gesetz gegen Wettbewerbsbeschränkungen (GWB) —the Act Against Restraints of Competition—first enacted in 1957 and regularly amended. The GWB operates alongside EU competition law, applying to conduct that does not satisfy the EU effect-on-trade criterion. The Federal Cartel Office (Bundeskartellamt), based in Bonn, is the principal enforcement authority, with a reputation as one of the most active and influential competition agencies in Europe. Appeals from Bundeskartellamt decisions lie to the Oberlandesgericht Düsseldorf and, on points of law, to the Bundesgerichtshof.

The GWB: Core Prohibitions

Section 1 GWB prohibits agreements and concerted practices that have as their object or effect the prevention, restriction, or distortion of competition, mirroring Article 101 TFEU. Section 19 GWB prohibits abuse of a dominant position, following the same structure as Article 102 TFEU. Section 20 GWB extends beyond classical abuse of dominance by prohibiting relative market power—where an undertaking is dependent on another undertaking because sufficient and reasonable alternatives are unavailable—and superior market power in buyer-seller relationships. The prohibition on discrimination and unfair obstruction in Section 20 applies not only to dominant undertakings but also to undertakings with relative market power.

The 10th GWB Amendment (2021)

The 10th amendment to the GWB, effective from January 2021, represents the most significant reform of German competition law in decades. Its centerpiece is Section 19a GWB, which empowers the Bundeskartellamt to impose ex ante obligations on undertakings of paramount significance for competition across markets. The Bundeskartellamt may prohibit such undertakings from engaging in specific conduct—including self-preferencing, leveraging data across markets, impeding interoperability, and using data generated through third-party activities—without requiring a finding of dominance in a traditional sense.

Application to Digital Markets

The Bundeskartellamt has been a global pioneer in applying competition law to digital platforms. In its landmark Facebook/Bundeskartellamt proceeding (2019), the authority found that Facebook abused its dominant position on the German social network market by combining user data collected from third-party websites and WhatsApp with its own Facebook data, without users’ voluntary consent. The Düsseldorf Higher Regional Court referred questions to the CJEU, which in Meta Platforms v. Bundeskartellamt (2023) confirmed that competition authorities may consider GDPR compliance in assessing abuse of dominance.

Merger Control

German merger control under Sections 35–43 GWB applies where the combined worldwide turnover exceeds €500 million and domestic turnover thresholds are met. Domestic turnover thresholds were raised by the 10th amendment to €500 million for the acquiring undertaking (previously €25 million) and €1.25 million for the target (previously €5 million), while introducing a transaction value threshold of €400 million for transactions in the digital economy where the target has significant domestic activities but low turnover. The Bundeskartellamt must prohibit a merger that would create or strengthen a dominant position unless the undertakings demonstrate that the merger also leads to improvements in competitive conditions.

Private Enforcement and Damages

Private enforcement of competition law has grown significantly. Sections 33–33h GWB govern private claims, including follow-on actions (binding effect of competition authority findings), disclosure of evidence, limitation periods (the German implementation of the EU Damages Directive), and the passing-on defense. Germany is among the most active jurisdictions for private damages actions in Europe, with the Grauzement (grey cement) cartel and Lkw-Kartell (truck cartel) generating substantial follow-on litigation before the regional courts (Landgerichte).

International Cooperation

Germany participates actively in the European Competition Network (ECN) and cooperates with competition authorities worldwide through bilateral agreements and multilateral forums, including the International Competition Network (ICN) and the OECD Competition Committee. The Bundeskartellamt has concluded bilateral cooperation agreements with authorities including the US DOJ, the UK CMA, and the French Autorité de la concurrence.