Germany: Apple Is Found To Be Of Paramount Significance For Competition Across Markets – Bird & Bird

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On 3 April 2023, the Federal Cartel Office
(“FCO“) issued a decision finding that
Apple Inc. (including its subsidiaries) holds a position of
“paramount significance for competition across markets”
within the meaning of Sec. 19a (1) of the Act against Restraints of
Competition. This new law entered into force in January 2021 as
part of a whole set of rules targeting the digital economy in
general and so-called digital gatekeepers in particular, providing
the FCO with ever more, earlier and stricter enforcement powers (see our January 2021 edition of Competitive Edge
). The decision was expected after the FCO came to the same
conclusions regarding Facebook, Amazon and Google Alphabet (see our February 2022 edition of Competitive Edge
). Other proceedings have just been launched against

The FCO found that Apple is one of the strongest companies in
the world in terms of sales and profits and the operator of a
comprehensive digital ecosystem with high significance for
competition not only in Germany, but also in Europe and worldwide.
According to the FCO, Apple has a strong market position across
various market levels including smartphones, tablets and
smartwatches, and proprietary operating systems. Furthermore, the
Apple App Store is the only digital distribution platform for apps
as well as other software products.

For these and other reasons the FCO concluded that Apple runs a
complex ecosystem affording it a power to behave independently of
its competitors, customers and, ultimately, consumers.

Following the FCO’s 3 April 2023 decision, the FCO now has
the power to investigate self-preferencing, restrictions on data
portability, interoperability of products or services etc.

The press release can be found here.

Government passes draft bill on 11th amendment of the German
Competition Act

On 5 April 2023, the Government approved a draft of the 11th
amendment to the Act against Restraints on Competition
(“ARC“), which will now be submitted to
the parliamentary legislative procedure. The aim of the amendment
is to ensure that disruptions to competition can be better remedied
in the interests of consumers by sharpening the FCO’s
instruments of intervention. The most important changes

  • Sector enquires can now lead to behavioural or structural
    remedies including, in the worst cases, unbundling of companies.
    Notably, this is even where no specific infringement of competition
    has been found but markets are nevertheless dysfunctional in the
    view of the FCO.

  • Profits from anti-competitive conduct can be skimmed, and an
    undue advantage of at least 1% of the cartelised products in
    Germany will be assumed (up to a maximum of 10% of the total global
    group turnover).

  • Implementation of the EU Digital Markets Act.

The bill can be found here (German

Originally published May 17 2023

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