Germany: Increasing importance of the prohibition on abusing a dominant market position in the digital economy

In recent years, the competition authorities have been very active in prosecuting companies for abusive conduct in digital markets. The European Commission has imposed record fines on Intel, Qualcomm and Google, and the Federal Cartel Office is also currently investigating Facebook and Amazon in proceedings that have attracted much international attention.

We expect that the prohibition on abusing a dominant market position in the digital economy will continue to gain importance in 2019. For example, the coalition agreement of the current Federal Government identified the need for further development of the prohibition on abusing a dominant market position, especially with regard to platform companies (see here). Furthermore, the Federal Ministry for Economic Affairs and Energy has commissioned a report on modernising the law on abuse of market power in preparation for possible legislative changes. With regard to platform companies with market power, the introduction of a ‘concept of intermediation power’ is envisaged. Within this concept, classifying a platform’s activity as an ‘intermediary service provider’ or ‘customer of the services offered on the platform’ can be decisive when assessing a platform’s market position. The overall circumstances also play a role, with special consideration of the platform’s market position on the various platform sites. There is also discussion of how proceedings on the abuse of market power can be accelerated, whether the prohibition on abusing a dominant market position can be deployed even before a dominant position is created in order to prevent the market from turning into a monopoly (known as tipping) and how dependent companies can be allowed to access competitively relevant data (‘Big Data’) (see here).

In the coming year, companies operating in the digital economy should therefore pay more attention than ever to the fact that antitrust issues may arise in many variations when they position themselves strategically in the market.