Part 2: “Updating” the Competition Act
The recent amendment of the Competition Act is entitled “Act for Digitizing the Competition Act”. The German legislator is the first worldwide to address many of the challenges of digital ecosystems that have been discussed at global level over the past few years.
Public debate in Germany has focused on a new provision aimed at regulating “GAFA” (short for: Google, Apple, Facebook, Amazon), the giants of the data economy (see below section 3). Lesser known but of great practical importance are the new rules broadening access to data (see below section 1) and regulating the behavior of intermediaries on multi-sided markets (see below section 2), both of which apply to digital and traditional industries alike and even to some extent address non-dominant players.
1. Access to data
The German government expects that the ability to use data across the entire value chain will be crucial for future economic development. For this reason, both the essential facilities doctrine (section 19(2) no. 4 of the Competition Act) and the concept of relative market power (new section 20(1a) of the Competition Act) were amended to allow competitors and service providers on upstream or downstream markets to access data they require for developing own offers under certain conditions.
The new “access to data” rules may apply to: