On January 11, 2023, the German Federal Cartel Office (Bundeskartellamt) announced that it had initiated administrative proceedings against Google. It stated that it had reached the preliminary conclusion that Google’s data processing terms violated the German Competition Act (Gesetz gegen Wettbewerbsbeschränkungen, GWB) by making the use of its services conditional on the user agreeing to the processing of data from other services of the company. (GWB § 19a, para. 2, no. 4a.) The Federal Cartel Office is therefore planning to obligate Google to change the choices offered.
In December 2021, the Federal Cartel Office had designated Alphabet Inc. (Google) as having “paramount significance for competition across markets” within the meaning of the new section 19a of the German Competition Act. Section 19a, which had been inserted into the Competition Act in January 2021, expanded the abilities of the competition authorities to regulate abuse of dominant market positions, in particular with regard to large digital platforms. It allows the Federal Cartel Office to designate a company that holds a dominant market position, meaning a market share of at least 40%, as having “paramount significance for competition across markets” and to subsequently impose certain restrictions on its activities. (GWB § 18, paras. 3, 3a, 4; § 19a.)
Procedure for Responding to the Cartel Office’s Statement of Objections
Google may respond to the Cartel Office’s statement of objections to Google’s data processing terms by commenting on the preliminary assessment and presenting further reasons justifying its practices. (GWB § 19a, para. 2, sentences 2, 3.) The procedure may result in either a discontinuation of the case, a commitment offer by Google, or a prohibition of Google’s practices. (GWB § 19a, para. 2, §§ 32, 32b.) The Federal Cartel Office expects to issue a final decision in 2023.
Jenny Gesley, Law Library of Congress
February 13, 2023
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