First proceeding based on new rules for digital companies – Bundeskartellamt also assesses new Section 19a GWB in its Facebook/Oculus case

In December 2020, the Bundeskartellamt initiated abuse proceedings against Facebook due to the linkage between Oculus and the Facebook network (see press release of 10 December 2020). Since then, important changes have been made to competition law with regard to digital companies which entered into force on 19 January 2021 (see press release of 19 January 2021). As a consequence, the Bundeskartellamt is extending the scope of its proceedings, also examining whether Facebook is subject to the new rules applying to undertakings of paramount significance for competition across markets (Section 19a German Competition Act, GWB) and whether linking the services is to be assessed on this basis.

Andreas Mundt, President of the Bundeskartellamt: “The new possibilities for intervention in the case of digital companies require the business to be of ‘paramount significance for competition across markets’. An ecosystem which extends across various markets – an almost unchallengeable position of economic power – is particularly characteristic in this respect. In view of Facebook’s strong market presence with the eponymous social network, WhatsApp and Instagram such a position may be deemed to exist. This is the first case in which we are putting the new provisions to use.