Legal Framework

The Bundeskartellamt’s tasks, activities and organisation are mainly based on the following legal provisions and notices.

National legal framework and notices

The primary legal basis for the Bundeskartellamt’s work is the German Competition Act (Gesetz gegen Wettbewerbsbeschränkungen – GWB). The GWB is designed to protect competition in the Federal Republic of Germany, which is to be defended against any and all restraints, irrespective of whether these were caused within or outside the country. Although the GWB applies to all companies, it contains certain special regulations for some sectors, such as agriculture.

The GWB came into force on 1 January 1958. It has been amended eleven times since then. The second amendment in 1973 was particularly important in terms of competition policy because it introduced merger control. Since 1 January 1999 the GWB has also protected bidders in the award of public contracts.

In early 2021, the 10th amendment to the German Competition Act entered into force as the “Act Amending the Act against Restraints of Competition for a focused, proactive and digital competition law 4.0 and amending other competition law provisions” (“GWB-Digitalisierungsgesetz” – GWB Digitalisation Act (in German)). A key element of the amendment is the modernisation of abuse control through the newly introduced Section 19a. This provision now allows the Bundeskartellamt for the first time to intervene at an early stage if competition is threatened by large digital companies.

In November 2023, the 11th amendment to the German Competition Act came into force. As a key element of the amendment the Bundeskartellamt’s competences were expanded to enable the authority to order remedies following a sector inquiry.

European legal provisions

The aim of the European Union is to establish a common market which allows for, among other things, the free movement of goods between the Member States. This aim is undermined if companies engage in private market-sharing agreements and other restrictive practices when state barriers to trade have been removed.

To prevent this and to create uniform conditions for companies, the Treaty on the Functioning of the European Union (TFEU) sets out competition rules for the prosecution of cartels (Article 101 TFEU) and the control of abusive practices (Article102 TFEU). These were complemented by various regulations, notices and recommendations of the European Council and the European Commission.
In addition, the EC Merger Regulation (ECMR) was introduced at the European level as an instrument for examining concentrations. The European Commission has exclusive competence for applying the ECMR.

With the introduction of Regulation (EC) No 1/2003 in May 2004 the Bundeskartellamt, as well as the other EU competition authorities, has been granted far-reaching competences for the application of Article 101 TFEU and Article 102 TFEU in the prosecution of cartels and abuse control. The Bundeskartellamt applies these European rules in addition to the provisions of the GWB if the anti-competitive practices are likely to affect trade between the Member States. The rules laid down in the GWB and the TFEU are, in essence, similar.

• Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (as amended by the Treaty of Lisbon, consolidated version, Official Journal of the European Union (EU) No C 326 of 26 October 2012, pp. 1 ff.)
• Articles 81 and 82 of the Treaty establishing the European Community, old version, replaced by Articles 101, 102 TFEU (EC Treaty, consolidated version, Official Journal of the EU No C 321 E/37 of 29 December 2006, pp. 37 ff.)
• Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
• Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (EC Merger Regulation, ECMR)

The national competition authorities in the European Union and the European Commission’s Directorate-General for Competition work closely together in a joint network, the European Competition Network (ECN), to enforce the ban on cartels and in the area of abuse control. The authorities use the network, for example, to exchange information on cases and decisions and to provide mutual official assistance in investigations, by conducting dawn raids at company premises or exchanging evidence. The authorities also cooperate closely in the area of merger control and in the context of the DMA. Within the ECN, the authorities help to evaluate and revise European legal texts relating to the protection of competition.

Relevant legal framework: