GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
7.4 Focus on Certain Industries/Sectors Unlike in abuse of dominance cases, where the FCO’s recent enforcement activities had a cer - tain focus on the digital economy, cartel enforce - ment is relatively sector neutral. Recent years have, inter alia, seen several horizontal cases in the construction industry. Vertical cases often relate to consumer products. 7.5 Use of Messaging Applications and Chat Platforms In case of a dawn raid, the FCO is entitled to access data from messaging applications and chat platforms, as long as this data is accessible to the person subject to the search. If necessary, the employee is obliged to provide passwords. The relevant provisions in the ARC implement the EU’s ECN+ Directive, which also requires that chat histories and electronic messages can be checked and copied regardless of whether they appear unread or have been deleted. Refusal to provide information that is necessary to access such data can entail additional fines. 7.6 “No Poach” and Labour Market Allocation Conduct No poach agreements between competitors can constitute a cartel offence under German com - petition law. To date, the FCO has not yet ren - dered any fining decisions for no poach agree - ments. Nevertheless, the FCO is aware of the sensitivity of no poach agreements, also in the context of M&A transactions. 7.7 Leniency v Ex Officio Investigations The increasing importance of cartel damage actions has led to a significant decline in leni - ency applications. Cartelists are reluctant to uncover cartels due to the incalculable risks from follow-on damages proceedings. The FCO only reported 17 leniency applications in 2024, compared to 76 in 2015, the year before the
duct and with regard to merger control, there has not yet been a similar case with regard to anti-competitive agreements or concerted prac - tices. However, the FCO’s president has repeat - edly expressed his concerns related to the use of AI in the context of anti-competitive agree - ments. The FCO also signed the joint declaration of competition authorities of the G7 countries of 4 October 2024 on competition issues related to AI. This declaration also addresses the risks from novel forms of anti-competitive behaviour – eg, price fixing or co-ordination via AI-supported algorithms. 7.3 Monopolisation as a Cartel Offence Just like EU law, German law provides for a spe - cific set of rules to target abusive behaviour by dominant undertakings. Dominance as such is not sanctioned, but it leads to a special respon - sibility of the dominant firm not to impair the already weakened competition. An undertaking is dominant if it is not exposed to any substantial competition, or has a para - mount market position in relation to its competi - tors. Dominance can take the form of single firm dominance, duopolies or oligopolies. To estab - lish dominance, the ARC provides for rebuttable presumptions based on market share thresholds. However, dominance can also be established on the basis of other factors, such as control over an indispensable infrastructure or data. Germany was also a pioneer in introducing spe - cific legal instruments to prohibit certain conduct by so-called undertakings of paramount cross- market significance. These provisions, which are similar to the EU’s Digital Markets Act, are specifically designed to control the behaviour of large digital players (GAFAM). The FCO is very active in this area and its enforcement activities attract significant resources.
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