German competition authorities have been pressuring US tech giants since new rules came into effect in January. However, the Digital Markets Act (DMA) currently under discussion at EU level could replace the section of German law that targets big tech. EURACTIV Germany reports.
After the Federal Cartel Office opened proceedings against Apple on Monday (June 21), all of the “big four” US technology companies are now being examined by German authorities for anti-competitive behavior.
“The fact that lawsuits have been brought against all major platforms – Google, Amazon, Facebook and Apple – by the Federal Cartel Office shows that we have created a very sharp sword here,” said Falko Mohrs, a social lawmaker -democrat who is a member of the Bundestag’s Digital Agenda Committee.
The “sharp sword” Mohrs refers to is the Anti-Restriction of Competition Act (GWB) amendment, which went into effect in January. The “core of the GWB Amendment”, according to Mohrs, is Article 19a which allows digital platforms to be targeted with a crossed and dominant position.
“Article 19a has been developed in order to be able to act in a more preventive and faster way and to prohibit certain behaviors and practices of powerful digital platforms,” Mohrs told EURACTIV.
German GWB vs. EU DMA
With the GWB digitization law, Germany has created the “first competition law in the world that provides answers to the challenges of digital markets”, said Hansjörg Durz (CSU), vice-chairman of the committee for the digital agenda 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 is currently under negotiation at European level. Like the GWB, the DMA seeks to curb the dominance of large digital companies.
However, as Mohrs pointed out, this parallel approach is not about “competition of regulators” but about mutual inspiration to deal with tech giants.
Unlike DMA, GWB relies on abstract legal concepts to determine targeted platforms, supported by a list of DMA-inspired examples, explained Durz.
“Here, we took inspiration from DMA. Examples of rules can be used as a guiding framework, especially in complex situations. However, they should not be formulated so conclusively that they have a restrictive effect, ”said Mohrs.
The definition of the perimeter is precisely one of the main differences between DMA and GWB. While the German amendments only mention those aspects which 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, ”said Durz.
According to Durz, the EU’s approach has the advantage that the “recipients of the standard” are clearly defined, but “carries the risk that companies become recipients of the standard that were not intended as such by the legislator “.
Germany’s concerns about DMA
However, the Commission’s DMA proposal and the GWB amendments are currently at odds and will need to be aligned at some point.
The DMA provides that EU countries cannot impose additional legal obligations on controllers. 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 less strict than the GWB.
Such fears already prompted the governments of Germany, France and the Netherlands 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 action against globally active companies should be taken at European level.
However, if “DMA is less stringent than Section 19a GWB, then more stringent national regulations should not be displaced by DMA,” Mohrs added.
As for Durz, he also underlined that the DMA is “one of the most important legislative projects to regulate the digital economy – in Europe, but also in the world”. That is why he insists that there are parts of DMA that need to be improved.
Durz called on DMA to be “more flexible” and “more open to technological change,” noting that the German approach to “abstract legal standards” is the right way to ensure that DMA can keep up with rapidly changing digital markets. .
Durz also called on national competition authorities to become more involved in the process – a request already made by European Parliament 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 comply with DMA rules.
“We need a modus vivendi of cooperation between national and European competition authorities,” Schwab told EURACTIV.
[Edited by Frédéric Simon]