Section 19a of the Reformed German Competition Act: A (Too) Powerful Weapon to Tame Big Tech?

Targeted at Big Tech, Section 19a of the Competition Act, Germany’s new antitrust tool for dealing with large digital platforms, rebalances power in favor of the German competition authority. Under the new tool, the authority may declare that a firm is of “paramount significance for competition across markets” and prohibit it from certain specified practices presumed to be unlawful. The addressed firms carry the burden of proving the practice’s countervailing procompetitive or efficiency-enhancing effects. Decisions by the German competition authority under Section 19a can only be challenged at the German Federal Court of Justice as the first and only avenue of appeal. We identify the advances and shortcomings of this new tool, as well as the opportunities and risks, when it comes to employing it in the field.

By Jens-Uwe Franck & Martin Peitz¹

Around the globe, legislatures have become active in providing competition authorities with new tools and resources to curb the market power of Big Tech. Germany is one of the countries at the forefront of these developments. On January 18, 2021, the German legislature finally adopted the Tenth Amendment to the German Competition Act² (“Gesetz gegen Wettbewerbsbeschränkungen”), which includes a number of legal changes aimed at protecting competition in times of digitalization. Its major innovation is the competition instrument enshrined in secti