New draft German antitrust bill: Will the Federal Cartel Office be vested with new powers to order unbundling on any disfunctional market without having to prove a violation of an-titrust laws?

The draft bill provides for a new section 32 lit. f) to be inserted into the Act against Restrictions of Competition (“GWB”) according to which the FCO may take remedial action if

- the FCO has completed a sector enquiry and published the report on its findings; and

- a "substantial, continuous or repeated disfunction of competition" has been established on at least one market (whereby the requirement of substantiality must be met cumulatively with continuous or repeated and not alternatively).

If these conditions are met, the FCO can take "all measures" to eliminate or reduce such disfunction (sec. 32 lit. f (3) GWB). These remedial measures can be behavioral or structural. The FCO can determine on a case-by case basis which measures it will take, taking into account the principle of proportionality. The (non-exhausive) list of exemplary remedies include

- granting access to data, interfaces and networks

- supplying other companies

- licensing the use to intellectual property

- reallocation of regulatory permits

- the organizational separation of business areas

- specifications for the drafting of contracts

- regulation of supply relationships between companies in the affected markets (including their termination)

- as an ultima ratio, unbundling.

Unbundling measures may only be imposed (sec. 32 lit. f) (4)) if they can (at minimum) significantly reduce the disfunction of competition and if behavioral measures would not be equally effective or would be more disadvantageous for the companies concerned. For acquisitions which have been filed and cleared by the competent antitrust authorities, no such measures may be ordered for a grace period of 5 years. However, neither an antitrust violation nor the abuse of market power (nor market power of the companies concerned) has to be proven. Furthermore, legal redress against any such measure imposed does not have suspend a respective order.

The criteria on the basis of which the FCO may establish the status of disfunction of competition are not conclusively enumerated. The term "disfunction" and the threshold of “significance” are not clearly defined. While general clauses which are open to interpretation are not a stranger in the application of antitrust law, the criteria are (even) more vague than for determining market dominance. The criteria to be taken into account by the FCO include those that are typically used to establish a dominant position, in particular market concentration, number, size and financial strength of the companies active on the market, cross-company shareholdings, vertical integration and also barriers to market entry. In addition, there is an explicit reference to market results and patterns of behavior which indicate that relative or superior market power or a dominant position may exist on the market concerned. Said analysis of market results may not only take into account (high) prices and (scarce) offer volumes. Instead, the starting point for the assumption of a disfunction can also be declining quality, a lack of choice and a low degree of innovation (!), as well as the terms and conditions that companies agree on in these markets. This enumeration also shows that the new law concerns do not only relate to the current political and economic situation triggered by the sudden and extreme shortage of raw materials, but can affect a much larger number of markets and companies. 

In addition to a simple order by the cartel authorities, the FCO can also accept commitments from the companies and declare them binding. On the one hand, offering such commitments enables the companies to take influence on the shape and extend of the concrete measures to be implemented. On the other hand it also opens up the possibility for the FCO to implement such measures without proof of neither a "significant disfunction of competition" nor of their suitability and proportionality.