German Competition Act - Section 19a(2)


Empowers the Bundeskartellamt to designate influential undertakings vital for competition across markets, enforcing regulations to prevent unfair practices and periodically reviewing its impact.


Abusive Conduct of Undertakings of Paramount Significance for Competition Across Markets
(1) The Bundeskartellamt may issue a decision declaring that an undertaking which is active to a significant extent on markets within the meaning of Section 18(3a) is of paramount significance for competition across markets. In determining the paramount significance of an undertaking for competition across markets, account shall be taken in particular of:
1.  its dominant position on one or several market(s),
2.  its financial strength or its access to other resources,
3.  its vertical integration and its activities on otherwise related markets,
4.  its access to data relevant for competition,
5.  the relevance of its activities for third party access to supply and sales markets and its related influence on the business activities of third parties.
The validity of the decision issued pursuant to sentence 1 must be limited to five years from the date on which it becomes final.
(2) In the case of a declaratory decision issued pursuant to subsection (1), the Bundeskartellamt may prohibit such undertaking from

1.  favouring its own offers over the offers of its competitors when mediating access to supply and sales markets, in particular
a)  presenting its own offers in a more favourable manner;
b)  exclusively pre-installing its own offers on devices or integrating them in any other way in offers provided by the undertaking;
2.  taking measures that impede other undertakings in carrying out their business activities on supply or sales markets where the undertaking's activities are of relevance for accessing such markets, in particular
a)  taking measures that result in the exclusive pre-installation or integration of offers provided by the undertaking;
b)  preventing other undertakings from advertising their own offers or reaching their purchasers through other channels in addition to those provided or mediated by the undertaking, or making it more difficult for other undertakings to do so;
3.  directly or indirectly impeding competitors on a market on which the undertaking can rapidly expand its position even without being dominant, in particular
a)  linking the use of an offer provided by the undertaking to the automatic use of another offer provided by the undertaking which is not necessary for the use of the former offer, without giving the user of the offer sufficient choice as to whether and how the other offer is to be used;
b)  making the use of an offer provided by the undertaking conditional on the use of another offer provided by the undertaking;
4.  creating or appreciably raising barriers to market entry or otherwise impeding other undertakings by processing data relevant for competition that have been collected by the undertaking, or demanding terms and conditions that permit such processing, in particular
a)  making the use of services conditional on the user agreeing to the processing of data from other services of the undertaking or a third-party provider without giving the user sufficient choice as to whether, how and for what purpose such data are processed;
b)  processing data relevant for competition received from other undertakings for purposes other than those necessary for the provision of its own services to these undertakings without giving these undertakings sufficient choice as to whether, how and for what purpose such data are processed;
5.  refusing the interoperability of products or services or data portability, or making it more difficult, and in this way impeding competition;
6.  providing other undertakings with insufficient information about the scope, quality or success of the service rendered or commissioned, or otherwise making it more difficult for such undertakings to assess the value of this service;
7.  demanding benefits for handling the offers of another undertaking which are disproportionate to the reasons for the demand, in particular
a)  demanding the transfer of data or rights that are not absolutely necessary for the purpose of presenting these offers,
b)  making the quality in which these offers are presented conditional on the transfer of data or rights which are not reasonably required for this purpose.
This shall not apply to the extent that the respective conduct is objectively justified. In this respect, the burden of demonstration and proof shall lie with the undertaking. Section 32(2) and (3), Section 32a and Section 32b shall apply mutatis mutandis. The order under subsection (2) may be combined with the declaration under subsection (1).
(3) Sections 19 and 20 shall remain unaffected.
(4) The Federal Ministry for Economic Affairs and Energy shall report to the legislative bodies on its experience with this rule after a period of four years following the entry into force of the provisions under subsections (1) and (2).

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