Germany fears EU digital law could loosen its antitrust grip on tech giants –

German competition authorities have been putting pressure on US tech giants since new rules came into force in January. However, the Digital Markets Act (DMA) currently under discussion at EU level could replace the section of the German law that targets big tech. EURACTIV Germany reports.

After the Federal Cartel Office opened proceedings against Apple on Monday (June 21), all US tech companies in the “big four” are now being scrutinized by German authorities for anti-competitive behavior.

“The fact that all major platforms – Google, Amazon, Facebook and Apple – have now been sued by the Federal Cartel Office shows that we have created a very sharp sword here,” said Falko Mohrs, an MP Social Democrat who is a member of the Bundestag’s Digital Agenda Committee.

The “sharp sword” to which Mohrs refers is the Amendment to the Restraint of Competition (GWB) Act, which came into force in January. The “heart of the GWB Amendment”, according to Mohrs, is Article 19a which allows for the targeting of digital platforms with a crossover and dominant position.

“Section 19a was developed in order to be able to act more preventively and quickly and to prohibit certain behaviors and practices from powerful digital platforms,” Mohrs told EURACTIV.

The main attempt by MEPs to “take back control of Big Tech”

The EU lawmaker responsible for the Digital Services Act (DSA) believes the landmark legislation will provide a “democratic settlement for online platforms” and says consumer protection and product safety are red lines for future negotiations.

German GVB vs. EU DMA

With the GWB Digitization Act, Germany has created the “first competition law in the world that provides answers to the challenges of digital markets”, said Hansjörg Durz (CSU), deputy chairman of the commission of the digital diary of the Bundestag.

“A little piece of history” has been written, Durz told EURACTIV. According to him, the German law has also contributed significantly to “the fact that we are now also talking in the EU about the rules of the game of a social digital market economy”.

Durz refers to the European Commission’s proposal for a Digital Markets Act (DMA) which was presented in December and which is currently being negotiated at European level. Like the GWB, the DMA seeks to curb the dominant position of the big digital companies.

However, as Mohrs pointed out, this parallel approach is not about “regulatory competition”, but mutual inspiration to deal with the tech giants.

Unlike the DMA, the GWB relies on abstract legal concepts to determine which platforms are targeted, supported by a list of examples inspired by the DMA, Durz explained.

“Here, we were inspired by the DMA. Examples of rules can serve as an orientation framework, especially in complex situations. However, they should not be worded so conclusively that they would have a limiting effect,” Mohrs said.

The definition of the perimeter is precisely one of the main differences between the DMA and the GWB. While the German amendments only mention aspects that serve as a guideline for the Federal Cartel Office, the definition of digital conglomerates – the so-called gatekeepers – in the DMA is “static and is linked to user numbers and to platform services,” Durz said.

According to Durz, the EU approach has the advantage that the “recipients of the standard” are clearly defined, but “carries the risk that companies become recipients of the standard which were not intended as such by the legislator “.

Germany’s concerns about AMD

However, the Commission’s DMA proposal and the GWB amendments are currently in disagreement and will need to be aligned at some point.

The DMA provides that EU countries cannot impose additional legal obligations on gatekeepers. If adopted in its current form, it would therefore repeal Article 19a of the GWB, which could be problematic for Germany if the DMA were to be less strict than the GWB.

Such fears already prompted the German, French and Dutch governments in May to ask the DMA to guarantee member states more leeway to curb the dominant position of the tech giants.

According to Mohrs, however, “national vanities” should be put aside when it comes to DMA, as actions against globally active companies should be taken at European level.

However, while “the DMA is less stringent than Section 19a GWB, stricter national regulations should not be superseded by the DMA,” Mohrs added.

As for Durz, he also pointed out that the DMA is “one of the most important legislative projects to regulate the digital economy – in Europe, but also in the world”. That’s why he insists that some parts of the DMA need to be improved.

Durz called on the DMA to be “more flexible” and “more open to technological change”, noting that Germany’s approach to “abstract legal standards” is the right way to ensure that the DMA can keep up with rapidly changing digital markets. . .

Durz also called on national competition authorities to be more involved in the process – a request already made by the European Parliament’s DMA rapporteur, Andreas Schwab.

In a disorganizedSchwab called for the creation of a “High Level Group of Digital Regulators” to help the Commission monitor and enforce DMA rules.

“We need a modus vivendi of cooperation between national and European competition authorities,” Schwab told EURACTIV.

[Edited by Frédéric Simon]

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