Election incoming: What will change in German antitrust?

After almost 16 years as chancellor of Germany, Angela Merkel will retire after the election in September, making the race to power more open than ever. This piece summarizes the antitrust plans of four parties that seem to have a shot at being part of the next government.

Status quo

At least based on recent polls, three parties have a realistic chance at becoming the biggest parliamentary group in the next Bundestag, which historically also put its leading candidate in the chancellor office. Whilst this outlook is quite the standard for the two biggest parties, the conservative party CDU (together with its Bavarian sister party CSU) and the labour party SPD, the Green Party seems to be stronger than ever and is apparently closing the gap to the other two. And any of these three might have to rely on the liberal party FDP to form a government.

Now, recent history – in several countries – has shown that polls dare to be wrong, but it is nonetheless worth taking a close look at the consequences a potential change of power might have for the future of antitrust law in Germany (and of course Europe). We have reviewed the election programmes of the four major democratic parties in detail:

CDU – keep on going

Since the CDU has been in power for nearly 16 years, it is almost natural that they do not foresee major changes. In fact, statements on antitrust law in their election programme are limited:

  • In line with the general trend, the CDU stresses the importance of fair and balanced competition in the digital economy and therefore wants to, without getting more specific, “develop and introduce a European digital market order with a modernized antitrust law and the same rules for all market participants”.
  • The party underlines the special responsibility of digital platforms for competition. Looking back at the CDU’s own achievements as the governing party, the election programme highlights that Germany was the first country in the world to create a new, forward-thinking legal framework by introducing the latest amendment of the German competition law (the 10th amendment of the German Competition Act, so called “Digitalization Act”), which allows to restrict certain behaviours of tech giants. According to the CDU, similar rules should be established at EU level via the Digital Services Act and the Digital Markets Act.
  • In addition, the CDU would like to examine whether and how large corporations can be obliged to share data with smaller competitors and to ensure data interoperability.

SPD – keep on going, with a twist

What applies to the CDU also seems to be true for the SPD (which has formed the current government together with the CDU):

  • Overall statements on antitrust law are limited. Starting with a rather consensual declaration, the SPD holds that too much market power of individual companies is detrimental to competition and ultimately harms consumers.
  • As, according to the SPD, the historical tools seem to be failing, the SPD wants to stay ahead of market developments and create a pre-emptive and proactive antitrust law. In addition to integrating proactive measures into antitrust law, the SPD would like to explore further instruments on EU level to regulate large platforms or, if necessary, to unbundle them.
  • The party also stresses the need to be able to communicate or switch between different messenger services, social networks and digital services and platforms. The SPD therefore wants to make this interoperability mandatory by law.

Green Party – sustainability, consumers, data and tech

The Green Party has relatively specific ideas for the future of Fridays antitrust law, which are summarized under the heading “competition law for the 21st century”:

  • Little surprising, the Greens propose to take environmental aspects into account during German and European merger control proceedings. Furthermore, they want to make consumer protection an objective of the German Act against Restraints of Competition and effectively strengthen its public enforcement.
  • The Party also wants to (re-)introduce the right of third parties to fully challenge the so-called “ministerial permission” (allowing the minister of economics affairs to clear transactions the Bundeskartellamt has prohibited) in court.
  • Regarding data, the Green party demands that data protection authorities must be heard during merger control proceedings and their statements should be considered in the final decision. The Greens further demand that the interoperability of software and digital services, as well as data portability and open interfaces, must be made mandatory wherever possible for companies that already dominate the market.
  • On tech, acquisitions of tech groups are to be examined by the Federal Cartel Office in order to prevent “killer acquisitions”. Also, the Greens call for the right to split up companies regardless of an abuse of market power, in case they already have or are about to have a certain size. The party further promises to advocate for an “appropriately” ambitious implementation of the Digital Markets Act at the European level. They want to establish a European digital supervisory authority under the umbrella of an independent European cartel office (!), which should be able to impose cooperation and transparency obligations.

FDP – antitrust?

The FDP, Germany’s liberal party, uses the word competition more often than any other party in its election programme. However, when it comes to antitrust policy, their programme is rather short: In fact, remarks regarding the party’s antitrust policy are limited to the statement that gatekeepers should be prevented to distort competition, inter alia by limiting the interoperability with the offerings of other companies. The FDP states that gatekeepers cannot be controlled on a national level and, thus, the implementation of the Digital Markets Act by the EU should be supported.

So, what to expect?

It is fair to say that the parties are not too far apart when it comes to antitrust law. All of them want to regulate big tech and ensure data sharing and interoperability. Whether that means the Digital Services Act and the Digital Markets Act can count on a tailwind from Germany, regardless of who comes to power, remains to be seen. While everyone seems to agree that big tech should be regulated, Germany has created its own regulatory tools with the Digitalization Act, whose relationship to (future) European law is still unclear. But there seems to be some kind of consensus that regulating big tech requires proactive measures.

In any case, the Greens are the most specific when it comes to future amendments of antitrust law. They have addressed the multiple requests for environmental aspects and consumer protection to be taken into account in merger control. The “goals of antitrust law” have been the subject of (academic) debates for decades and one can be curious about the practical implementation of these plans.

The fact that the Greens want to (again) allow third parties to challenge the so called “ministerial permission” in court shows on the one hand, that they have entered the depths of antitrust law for their election programme and, on the other hand, a diversion from their former coalition partner, the SPD. As a reminder: After the ministerial permission in EDEKA/Kaiser´s Tengelmann by the Minister of Economic Affairs at the time (Sigmar Gabriel from the SPD) was provisionally declared unlawful by the Higher Regional Court of Düsseldorf, the coalition of CDU and SPD had de facto abolished the possibility for third parties to challenge a ministerial decision in court.

In case you wanted to make antitrust the decisive factor in your election decision, the choice seems to be limited. But more help is one the way: For a “personal touch” and interviews with the antitrust experts from each party, we recommend the podcast of Justus Haucap and Rupprecht Podszun.

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