Breaking the Habits: The German Competition Law after the 7th Amendment to the Act against restraints of Competition (GWB)
By Andreas Klees
The amended German Act against restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) has been in force since 1 July 2005. After a long and controversial debate, including a mediation procedure between the Bundestag (Lower House of the German Federal Parliament) and the Bundesrat (Upper House of the German Federal Parliament), and two and a half years after the adoption of Regulation No. 1/2003 in December 2002 the7th Amendment to the Law against restraints of Competition was finally adopted in June 2005. Interestingly, the delay in passing the 7th Amendment – more than one year after Regulation No.1 came in force – was not so much caused by the fundamental changes that had become necessary in the light of Regulation No. 1. Rather, it was caused by those changes which did not become part of it: the proposed reform of merger control in the newspaper industry. Nonetheless, the latest amendment of the German competition law brought a greater number of fundamental changes than the six previous amendments adopted between 1958 and 1998. More specifically, the 7th Amendment abolished numerous specialties of the German antitrust law, which had been cultivated during previous decades. At the same time, it pointed to the increasing "Europeanization" (or, in other words, the decreasing relevance) of the national competition law that primarily covers the rules regarding anti-competitive agreements, decisions and concerted practices and is likely to extend to other areas in the future, such as unilateral conduct and merger control.
This article deals with the most important changes the 7th Amendment has brought about in German competition law: its main focus is antitrust issues, including private antitrust enforcement and merger control. While the so-called "modernization" of European competition law in the shape of Regulation No. 1 has primarily affected procedures in antitrust cases, the reform of German antitrust law covers both substantive and procedural issues. As a consequence, this article distinguishes between...