12th Amendment to the German Competition Act: Overview of the BMWE’s draft bill of 4 June 2026

C. Key changes

Details of the key changes for antitrust practice are set out below:

I. Merger control

The changes to merger control law are likely to have the greatest immediate practical impact. They pursue two opposing objectives: a significant reduction in the burden for straightforward notifications, coupled with a targeted expansion of the scope of application for particularly critical cases.

1. Increase in turnover thresholds (section 35(1) of the Draft Competition Act)

All turnover thresholds are being raised, namely the global threshold from €500 million to €750 million (+50%), the first domestic threshold from €50 million to €75 million (+50%) and the second domestic threshold from €17.5 million to €20 million (+14%). The second domestic threshold is deliberately being raised only moderately to continue to cover concentrations that are critical for competition in regional markets. The Ministry for Economic Affairs and Energy expects a decline in notifications of around 13 to 14% (approx. 120 cases per year).

2. Reorganisation of the transaction value threshold (section 35(1)(2)(b) of the Draft Competition Act)

The transaction value threshold, previously regulated in section 35(1a) of the Competition Act (old version), is being transferred to section 35(1) of the Draft Competition Act and is thereby harmonised with the turnover threshold within the legislative framework: the global threshold (€750 million) and the first domestic threshold (€75 million) will continue to apply uniformly to both thresholds, as before; either the second domestic threshold (€20 million) or a transaction value of more than €400 million must also be met. It is made clear that the turnover and transaction value thresholds are of equal standing and that there is no subsidiarity relationship between them.

A significant change is the extension of the definition of ‘substantial domestic activity’: in future, its scope will also include target companies that are not yet active in Germany, or are only active to a minor extent, but are expected to become active in Germany to a substantial degree. This is in line with the regulatory approach already pursued by the former Federal Ministry for Economic Affairs in connection with the introduction of the transaction value threshold in 2017. The original draft bill for the 9th Amendment to the Competition Act explicitly covered companies that would only commence domestic activity in the future. However, this extension was not adopted in the subsequent legislative process, meaning that the current transaction value threshold has so far required the target company to have engaged in substantial current domestic activity.

The legislature is thus explicitly addressing scenarios such as Microsoft/OpenAI and Microsoft/Inflection, which could not previously be covered. From a legal perspective, the explanatory memorandum builds on the impact principle of section 185(2) of the Competition Act and the Federal Court of Justice’s decision in Meta/Kustomer (decision of 17 June 2025, KVR 77/22) and develops them further. A time horizon of up to two years is generally applied when forecasting future domestic activity; three to five years mark the upper limit. Purely hypothetical market entries are not sufficient – a significant, rather than merely marginal, domestic impact is required. This further extends the already wide scope of application of the transaction value threshold, which has been in place since the Federal Court of Justice’s decision in Meta/Kustomer In practice, it is likely to be practically impossible in many cases to definitively rule out significant domestic activity on the part of the target company.

The Ministry for Economic Affairs and Energy is thus also moving away from legal developments in Austria, where the transaction value threshold was introduced at the same time as in Germany. In 2025, the Austrian Supreme Court ruled that any future activities are not to be taken into account when assessing significant domestic activity (Austrian Supreme Court, decision of 26 March 2025 – 16 Ok 2/25t – Herzklappen).

3. Phase 0: new notification procedure for the transaction value threshold (sections 39(1), sentence 2, 39(7) and 39(8) of the Draft Competition Act)

For all concentrations that are notifiable solely on the basis of the transaction value threshold, a mandatory pre-notification procedure (Anzeige) is introduced prior to formal notification. The Federal Cartel Office will notify the parties within two weeks as to whether a formal notification is required; if a decision on the formal notification requirement is issued, the concentration is deemed to have been cleared. The pre-notification requires no justification and is not subject to appeal. Although the mandatory information required for the pre-notification is somewhat reduced compared to a formal notification, it does include a description of the strategic and economic motivations, which must be substantiated by internal decision-making documents. A formal notification should only be required if an in-depth review procedure (Hauptprüfverfahren; Phase 2) is not clearly ruled out.

This is therefore not merely a ‘notification light’, but an independent preliminary assessment tool. It should be emphasised that, with this mechanism, the authors of the draft bill have deliberately opted against granting the Federal Cartel Office the right to examine mergers even below thresholds and to oblige the undertakings involved to submit a notification (call-in rights), and has instead opted for a rule-based notification and registration obligation. In principle, this is to be welcomed in the interests of legal certainty; in cases of doubt, however, the informal preliminary consultation with the Federal Cartel Office that was previously possible will now be replaced by a formal – albeit abbreviated – pre-notification procedure (Phase 0), which will entail additional effort.

The pre-notification, supposedly referred to as a ‘notification light’, is likely in practice to involve a similar amount of effort to that of a full notification, as the relevant information must still be prepared here as well. Nevertheless, it will be up to practitioners to find pragmatic approaches in order to achieve the desired reduction in administrative burden and bureaucracy.

Of interest is the criterion for determining when a notification must be filed: a full notification may only be required if an in-depth review procedure (Hauptprüfverfahren; Phase 2) is imminent. It remains to be seen whether the Federal Cartel Office can reliably assess this threshold within two weeks.

4. Prohibition of closing following judicial revocation of clearance (sections 40(6) and 41(1) of the Draft Competition Act)

If a clearance decision is legally and definitively revoked by a court following an appeal by a third party (such as a competitor) or – in the case of hostile takeovers – by the target company, a new in-depth review procedure (Hauptprüfverfahren; Phase 2) must be conducted in future (rather than divestiture proceedings). Closing steps that were implemented in reliance on the anticipated clearance or on an exemption do not become retroactively prohibited. This clarification increases legal certainty for transactions and closings, particularly where closing occurs while an appeal is still pending.

Digitisation of merger control (sections 39(1), sentence 3 and 187(15) of the Draft Competition Act)

From 1 January 2028, notifications may only be submitted via the electronic channels listed below. Until then, a transitional period applies during which written form is sufficient.

II. Prohibition of cartels and substantive competition law

1. Procurement screening (section 32h and section 114(4) and (5) of the Draft Competition Act)

For the first time, the Federal Cartel Office is granted the power to systematically analyse procurement data in procurement procedures exceeding the EU thresholds (see section 106(1) and (2) of the Competition Act), irrespective of suspicion, for indications of infringements of section 1 of the Competition Act / Article 101 TFEU (in particular bid-rigging). In parallel, contracting authorities are obliged to transmit data on all bidders – including unsuccessful ones – to the Public Procurement Data Service. The data is stored there for two years and at the Federal Cartel Office for up to five years. Section 114(5) of the Draft Competition Act also allows contracting authorities and public procurement tribunals to disclose confidential procedural documentation to the competition authorities on a case-by-case basis. Given that public procurement is worth over €120 billion, this is the instrument with the most significant practical implications in the draft.

For companies operating in the public procurement market, the detection risk in case of an infringement increases significantly. Bidding behaviour, pricing and internal communication should be reviewed at an early stage for compliance risks. Particularly critical: the systematic analysis of all bidder data – including that of unsuccessful bidders – without specific cause enables the identification of patterns that were previously impossible. Germany is thus following the example of Spain and Denmark.

2. ‘Safe harbour’ also for vertical agreements (section 32c(4) of the Draft Competition Act)

By deleting the words “with competitors”, the right introduced by the 10th Amendment to the Competition Act to obtain a decision from the Federal Cartel Office that there is no reason for it to take action is extended to vertical and other non-horizontal cooperation. This will enable innovative collaborations – such as data pools with non-competitors – to be secured at an early stage in future.

This provides a valuable safeguard, particularly for companies with innovative business models – such as data-based platforms, distribution collaborations or supply chain partnerships. An early clearance decision from the Federal Cartel Office can safeguard investment decisions and avoid legal disputes. Until now, this was only possible for horizontal cooperation, even though other types of cooperation can also be complex and difficult to assess. This amendment is therefore to be welcomed in terms of greater legal certainty.

III. Antitrust damages and private enforcement

The implications for private enforcement are of a more indirect nature. Little will change for companies preparing claims for damages: access to information remains limited to decisions; sector inquiry files remain off-limits.

Third parties’ access to files for the preparation of claims for damages under section 33(1) of the Competition Act remains, under section 56b(3) of the Draft Competition Act, limited to access to decisions under sections 32 to 32d and 60 of the Draft Competition Act (in particular cease-and-desist orders, interim measures, commitments, withdrawal of exemptions and decisions imposing fines); the exhaustive regulatory framework of the Competition Act takes precedence over general rights of access to information ((Freedom of Information Act (Informationsfreiheitsgesetz), Environmental Information Act (Umweltinformationsgesetz) and Consumer Information Act (Verbraucherinformationsgesetz)) – including in sector inquiries (section 32e(5) of the Draft Competition Act).

Finally, the jurisdiction of the antitrust judicial panels is expressly extended via section 93 of the Draft Competition Act read in conjunction with section 87 of the Competition Act to class actions under the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz) that concern antitrust claims.

IV. Procedural law and powers of the Federal Cartel Office

Clarifications of procedural law, simplifications and selective extensions of powers account for the largest share of the draft bill – at least in terms of page count.

The amendments are aimed in particular at streamlining and accelerating antitrust proceedings, strengthening the enforcement powers of the Federal Cartel Office, and increasing procedural transparency – especially through new public hearing formats and extended publication requirements.

1. Reorganisation of the hearing provisions (sections 56 to 56b of the Draft Competition Act)

The provisions previously set out in section 56 of the Competition Act are being divided into three separate provisions: general hearings (section 56 of the Draft Competition Act), public oral hearings (section 56a of the Draft Competition Act) and access to files (section 56b of the Draft Competition Act). The previous instrument of oral proceedings was too formal and inflexible and had not been used for 20 years. It is being replaced by a new public oral hearing, which is deliberately designed to be more flexible and participatory: it is intended to facilitate early dialogue between the authority, the parties involved and the business communities affected. This hearing is mandatory in proceedings concerning remedial measures following sector inquiries (section 32f(3) and (4) of the of the Draft Competition Act) and in ministerial authorisation proceedings – in each case with the option for all parties to waive the hearing.

For companies involved in sector inquiries or ministerial authorisation proceedings, the new public hearing will become the central forum for raising concerns at an early stage and influencing planned remedial measures. Unlike previously, competitors, customers and associations will also be able to participate actively.

2. Access to files for parties merely joined to the proceedings (section 56b(1), sentence 2 of the Draft Competition Act)

It is made clear that parties merely joined to the proceedings – i.e. those affected solely in terms of their economic interests – have no legal right to access files; granting such access is at the discretion of the competition authority (alignment with section 70(3) of the Competition Act and the Federal Court of Justice, decision of 20 February 2024, KVB 69/23).

3. Abolition of the requirement for leave to appeal in the case of appeals on points of law (section 77 of the Draft Competition Act; deletion of sections 78 and 79(4), sentence 4 of the Competition Act)

In future, appeals against decisions of the higher regional courts will thereby no longer require leave to appeal; the appeal against refusal of leave to appeal on points of law has been abolished, opening a direct route to the Federal Court of Justice. This is justified by the low number of cases, coupled with the high economic significance and far-reaching impact of antitrust administrative matters. This will serve to speed up proceedings and strengthen the role of the Federal Court of Justice in safeguarding legal uniformity.

The amendment also addresses a long-standing demand made by the Federal Cartel Office. Andreas Mundt, President of the Federal Cartel Office, has repeatedly pointed out that, particularly in economically and legally significant digital proceedings, the preliminary appeal against refusal to grant leave could lead to additional procedural steps and delays. A prominent example is the merger proceedings concerning Meta /Kustomer, in which the Federal Cartel Office initially had to pursue the route of an appeal against refusal to grant leave before the Federal Court of Justice could be seized of the matter. The legislature is now addressing this concern by opening up direct access to the Federal Court of Justice, thereby accelerating the clarification of fundamental antitrust issues by the highest court.

4. Equal status with the public prosecutor’s office in fine proceedings (section 82a of the Draft Competition Act)

Until now, following an appeal against a fine notice, all communications with the court had to go through the public prosecutor’s office – even though the latter has not exercised its rights of participation in antitrust proceedings for years. This is now changing: the antitrust authority is granted the same rights and powers as the public prosecutor’s office and will in future communicate directly with the court and the Federal Public Prosecutor General. The public prosecutor’s office will merely be kept informed. The aim is to streamline and speed up proceedings.

For companies, little will change initially – the Federal Cartel Office remains the point of contact. However, the new rules are intended to speed up court proceedings following an appeal against a fine notice, as unnecessary intermediate steps are eliminated.

5. Publication requirements (sections 43(4) and 61(3) of the Draft Competition Act)

In future, the Federal Cartel Office is to publish its decisions – including merger control decisions and decisions under sections 19a, 32 and following, 34 and 60 of the Draft Competition Act – in full and irrespective of whether an appeal is pending, subject to the protection of confidentiality (redactions).

The extended publication requirement serves the interests of transparency and is intended to give companies, competitors and the public early insight into the Federal Cartel Office’s decision-making practice. For affected companies, this means that even decisions which are not yet final will be made publicly available in a timely manner – with corresponding reputational risks, but also greater legal certainty for market participants as a whole.

6. Fees (sections 62(2) and 182 of the Draft Competition Act)

The maximum fee rates, last adjusted in 1989, are being significantly increased, including to €750,000 in proceedings under section 19a of the Competition Act, €250,000 under section 32 of the Competition Act and €100,000 for merger control proceedings. The average fees for preliminary review proceedings will rise from €7,500 to €10,000, and for main review proceedings from €30,000 to €50,000.

The increase addresses the imbalance between rising administrative costs and fee caps that have remained unchanged for decades. For companies, this means higher procedural costs – particularly in complex abuse and merger control proceedings. At the same time, the principle of equivalence remains paramount: the fees continue to be based on the economic significance of the proceedings, thereby ensuring a differentiated fee burden commensurate with the significance of the proceedings.

7. Limited term of office for the President (section 51a of the Draft Competition Act)

In future, the leadership of the Federal Cartel Office will be structured as a fixed-term civil service appointment for eight years without the possibility of reappointment (alignment with provisions concerning the leadership of the Federal Network Agency (Bundesnetzagentur) and Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleitsungsaufsicht), as well as with EU practice).

8. Parties to appeal proceedings and third-party legal protection (sections 63, 70(2) and 73 of the Draft Competition Act)

Section 63 of the Draft Competition Act codifies the current state of case law on party status; section 44a of the Code of Administrative Court Procedure applies accordingly (section 73(1), sentence 3 of the Draft Competition Act). Particular note should be taken of the removal of the restriction on third-party standing against ministerial authorisation introduced by the 9th Amendment to the Competition Act (section 73(2), sentence 2 of the Draft Competition Act): in future – as was the case prior to the 9th Amendment to the Competition Act – it will suffice that economic interests are affected.

The extension of the right of third-party action strengthens legal protection against ministerial authorisations – competitors and other market participants will in future find it easier to challenge controversial mergers without having to prove an infringement of their own subjective rights. This is intended to increase the level of judicial scrutiny of the already rare and often controversial instrument of ministerial authorisation.

V. Supervision of abuse in the energy sector (section 29 of the Competition Act / section 187(1) of the Draft Competition Act)

Section 29 of the Competition Act is a special provision on abuse control for network-bound energy supply introduced in 2007. Compared to the general abuse control provisions (section 19 of the Competition Act), it lowers the threshold for intervention and makes it easier for the Federal Cartel Office, in particular, to prove abusively inflated prices by market-dominant energy suppliers, for example through comparative market analyses and a reversal of the burden of proof. Due to the intrusive nature of this provision, it was limited in time from the outset and has since been extended several times; the current time limit expires at the end of 2027. The draft extends it by five years until 31 December 2032, because the markets in question – district heating (covered since 2022), basic and heating electricity supply, as well as electricity generation and balancing energy – continue to occupy dominant market positions, and the Federal Cartel Office and the state cartel authorities alone have initiated nearly 60 proceedings on this basis since the last extension.

VI. Market Transparency Unit for Fuels (section 47k of the Draft Competition Act)

The Fuel Market Transparency Unit, which operates under the Federal Cartel Office, collects petrol station prices in real time and passes them on to consumer information services (petrol apps); until now, operators have been required to report prices for Super E5, E10 and diesel. The draft extends this reporting obligation at a statutory level to include Super Plus, as this grade now has sufficient market relevance for consumers. In addition, the Fuel Market Transparency Unit – in implementation of the coalition’s Immediate Energy Programme of April 2026 – is to be given a new investigative tool that does not require a suspicion: It may continuously request price and sales data from suppliers at market levels upstream of the petrol station level (e.g. refineries, wholesalers), such as sales volumes, prices and delivery times. Unlike the enhanced powers under section 29a of the Competition Act, no initial suspicion is required for this; each request is to cover a period of no more than six months and is subject to judicial review of proportionality.

VII. Press cooperation (section 30(2b) of the Competition Act / section 187(6) of the Draft Competition Act)

Section 30(2b) of the Competition Act permits newspaper and magazine publishers to enter into cooperation agreements with preferential treatment under competition law in the areas of advertising, distribution and technical services, in order to safeguard press diversity in the face of declining advertising and circulation revenues. This exemption from the antitrust ban was designed as a temporary measure and was due to expire for agreements taking effect after 31 December 2027. The draft removes the time limit on the provision, thereby making it available on a permanent basis. This is justified by the ongoing upheavals in the media sector caused by digitalisation and large internet platforms; there has been no evidence of abusive use in practice, whilst the opportunity for cooperation has been well received.

VIII. Deletion of the competition rules (sections 24 to 27 of the Competition Act)

The competition rules are an instrument dating from the Competition Act’s inception: trade and industry associations could have internal rules on fair market conduct recognised by the Federal Cartel Office and entered in a register, thereby gaining legal certainty under competition law. With the removal of the independent exemption provision by the 7th Amendment to the Competition Act and the transition to a system of legal exceptions, they lost their original purpose; their practical significance has long been minimal, and their abolition had already been considered in earlier amendments. The draft therefore deletes sections 24 to 27 of the Competition Act without replacement – also against the background of the concurrent expansion of the competition authority’s advisory role (section 32c of the Draft Competition Act), which now better serves the same purpose. Competition rules already recognised are protected by grandfathering provisions; the previous provisions, including the possibility of withdrawal, remain applicable to them (section 187(14) of the Draft Competition Act).

IX. Section 19a of the Competition Act and digital markets

It is also worth noting what the draft does not contain: despite the coalition agreement’s announcement that the rules on digital competition would be further developed, the draft includes no genuinely substantive changes to section 19a of the Competition Act or to support the enforcement of the Digital Markets Act (“DMA”). Section 19a of the Competition Act is merely touched upon in passing – by deleting the now-obsolete reporting obligation (section 19a(4) of the Draft Competition Act), by raising the fee ceiling to €750,000 (section 62(2) of the Draft Competition Act) and by clarifying the publication obligation (section 61(3) of the Draft Competition Act). The interface between section 19a of the Competition Act and the DMA – i.e. the interplay and demarcation between national abuse control of digital companies under section 19a of the Competition Act and the parallel regulation of particularly large platforms under the DMA – remains unchanged in practice. For companies involved in section 19a proceedings or with DMA relevance, the legal framework remains largely unchanged for the time being.

B. Assessment and outlook

The draft is primarily presented as an efficiency and relief amendment that leaves the tried-and-tested architecture of German antitrust and merger control law untouched.

The raising of the turnover thresholds is understandable; it noticeably reduces the administrative burden in practice. The mirror-image extension of the transaction value threshold to the anticipated domestic activity is conceptually well-intentioned, as it aims to address competitively critical scenarios. However, this link to anticipated domestic activity creates considerable legal uncertainty: in particular, for foreign-to-foreign transactions with no current domestic connection, the forecast-based notification requirement under the self-assessment system will now be even more difficult to manage; the two-year horizon mitigates this only gradually. The new notification procedure is pragmatic, but the required information on strategic motives and internal documents makes it less streamlined than advertised.

In contrast, the clarification regarding the prohibition on enforcement following the lifting of a court-ordered suspension is clearly to be welcomed.

With the procurement screening and equal status with the public prosecutor’s office in fine proceedings, the Federal Cartel Office’s enforcement potential is noticeably strengthened. Companies with activities in the public procurement market should review their bidding behaviour and documentation at an early stage.

The abolition of the appeal against refusal of leave to appeal speeds up proceedings and strengthens the role of the Federal Court of Justice.

Companies and associations are advised to make active use of the upcoming consultation with associations – in particular regarding the forecast-based notification requirement, the mandatory information in the notification procedure and the design of the procurement screening.

Next steps: The draft bill is currently undergoing inter-ministerial consultation; this will be followed by the consultation with industry associations and the parliamentary process. Please do not hesitate to contact us if you have any questions regarding the implications for your company.