Market Definition and Three 19a Designations Under German Antitrust Law: Alphabet, Meta, and Amazon

The Bundeskartellamt has designated Alphabet, Meta, and Amazon as 19a firms. Thus, they are potentially subject to specific competition law interventions under a special procedure. In these three designation decisions, market definition plays an important role. This article points to several noteworthy aspects that concern market definition. In all decisions the authority focuses on one national market, arguing that the respective platform operator is dominant. The authority’s considerations are made at a somewhat aggregate level, abstracting from differences across market segments.

By Jens-Uwe Franck & Martin Peitz^[1]

I. INTRODUCTION

Section 19a of the German Competition Act^[2] sits between traditional competition law and sector regulation.^[3] Targeted at Big Tech, it aims to rebalance the power between the Bundeskartellamt on one side and designated large digital platforms on the other. In particular, the competition authority benefits from a reversal of the burden of proof regarding the anticompetitive nature of certain conduct by 19a firms. Interventions can, on the one hand, be more far-reaching than under the EU Digital Markets Act (“DMA”). On the other hand, however, 19a firms remain free to demonstrate that a certain conduct is “objectively justified.”

To intervene under section 19a the Bundeskartellamt must first designate an undertaking as a 19a firm. This requires two things: The undertaking has to be active “to a significant extent on mar