Future Reforms of the German Act Against Restraints of Competition (GWB)

Introduction

The German Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen — GWB) is one of the most important competition-law statutes in Europe. It traditionally focuses on preventing cartels, controlling abuse of market power, reviewing mergers, and protecting effective competition. However, digital platforms, artificial intelligence, autonomous economic agents, data-driven markets, cloud infrastructure, and sustainability concerns are creating forms of market power that do not fit neatly into traditional competition-law categories.

Future GWB reforms are therefore likely to move toward a more preventive, technology-neutral, structural and institutionally coordinated competition regime. The direction is already visible in the modernisation of German competition law, particularly through §19a GWB, which gives the Bundeskartellamt enhanced powers over undertakings of paramount significance for competition across markets.

1. Main Objectives of Future GWB Reform

Future reforms are likely to pursue several objectives:

1. Earlier intervention against digital market power
2. Greater regulation of ecosystems and gatekeepers
3. Control of data and compute-based market power
4. More effective structural remedies
5. Regulation of AI-mediated competitive conduct
6. Closer coordination with EU competition law and the DMA
7. Improved merger control for digital and technology markets
8. Greater protection against self-preferencing and foreclosure
9. Faster administrative proceedings
10. Greater consideration of economic resilience and sustainability

The basic philosophy could shift from:

“Intervene after demonstrable harm”

toward:

“Prevent the development of entrenched and irreversible market power.”

2. Expansion of §19a GWB

One of the most important areas for future reform is §19a GWB.

Section 19a allows the Bundeskartellamt to identify undertakings of paramount significance for competition across markets and subsequently prohibit particular anti-competitive practices.

Future reforms could:

• broaden the scope of §19a;
• include emerging AI and cloud ecosystems;
• address foundation-model providers;
• capture infrastructure bottlenecks;
• simplify procedural requirements;
• extend intervention to newly emerging forms of ecosystem power.

Potential future application

A company controlling:

cloud infrastructure → GPUs → foundation models → AI APIs → applications → advertising/data

could potentially possess competitive significance extending far beyond one conventional relevant market.

Future GWB reform may therefore recognize ecosystem power as an independent source of competitive concern.

3. Regulation of AI-Mediated Competition

AI creates a fundamental challenge for traditional competition law.

Algorithms can:

• determine prices;
• select suppliers;
• allocate customers;
• optimize advertising;
• determine access conditions;
• negotiate contracts;
• coordinate inventory;
• detect competitors' behavior.

Future GWB reform may therefore establish clearer rules concerning algorithmic coordination.

Possible reforms

The GWB could develop presumptions concerning:

• algorithmic price coordination;
• autonomous pricing agents;
• algorithmic information exchange;
• common optimization systems;
• AI-enabled discriminatory access;
• automated exclusion of competitors.

The central legal question will increasingly be:

Can competition law attribute anti-competitive conduct to an autonomous algorithm when no human employee expressly instructed the algorithm to coordinate?

Future reform may focus less on subjective human intention and more on foreseeable competitive effects and governance responsibility.

4. Data as a Source of Market Power

Traditional competition law often treats data as an input. Future GWB reform may treat certain data advantages as a structural source of dominance.

This could involve:

• exclusive access to commercially valuable datasets;
• real-time behavioural data;
• transaction data;
• biometric datasets;
• industrial IoT information;
• mobility data;
• AI training datasets.

Possible reforms could strengthen:

Data-access remedies

Dominant firms might be required to provide competitors with access to particular categories of data where denial creates substantial competitive foreclosure.

Data portability

Greater interoperability could reduce switching costs and prevent data-driven lock-in.

Data combination restrictions

Future GWB rules could scrutinize the combination of datasets obtained from separate markets where the combination substantially strengthens market power.

5. Cloud and Compute Infrastructure

Future competition law may increasingly regard cloud computing, GPUs, data centres and AI compute as strategically significant infrastructure.

Potential concerns include:

• cloud lock-in;
• excessive data-egress costs;
• discriminatory interoperability;
• exclusive GPU arrangements;
• preferential access to computing resources;
• tying cloud services to AI models;
• foreclosure of competing AI developers.

Future GWB reform could introduce stronger remedies where a dominant infrastructure provider controls an essential competitive input.

6. Stronger Structural Remedies

Traditional German competition enforcement has frequently relied on behavioural remedies.

Future reforms may increase the importance of structural remedies.

Possible measures include:

• divestiture;
• business-line separation;
• functional separation;
• accounting separation;
• interoperability obligations;
• separation of platform and downstream operations;
• restrictions on acquisitions by dominant ecosystems.

This is particularly important where behavioural remedies repeatedly fail.

A future GWB framework could therefore move toward a principle of:

Persistent structural market power + repeated behavioural violations = potential structural remedy.

7. Merger Control Reform

Digital markets present difficulties for conventional turnover-based merger thresholds.

A start-up may have:

• very low turnover;
• enormous strategic value;
• significant data;
• important AI technology;
• a rapidly expanding user base.

Future GWB reform could therefore strengthen scrutiny of:

• acquisitions of nascent competitors;
• killer acquisitions;
• AI start-ups;
• data-rich companies;
• cloud technology acquisitions;
• foundation-model companies;
• vertical acquisitions involving essential infrastructure.

The German regime could also increasingly coordinate merger assessment with European Commission and DMA enforcement.

8. Digital Ecosystems and Conglomerate Power

Future GWB reform may move beyond the analysis of individual markets.

Large digital firms can leverage power from:

Search → advertising → browser → operating system → app store → payments → cloud → AI

Such ecosystems create competitive advantages that may not be captured by examining each market separately.

Future reform could therefore develop a stronger doctrine of:

Cross-market leverage

Market power in one market may be used to protect or expand power in another.

Ecosystem foreclosure

A platform may make independent operation increasingly difficult for competitors even without imposing an obviously exclusionary price.

9. Self-Preferencing

Self-preferencing is particularly important for vertically integrated digital platforms.

A platform may simultaneously:

• operate the marketplace;
• sell its own products;
• control ranking algorithms;
• control advertising;
• possess transaction data.

Future GWB reforms could establish stronger presumptions against discriminatory treatment of competing businesses.

Possible remedies include:

• ranking neutrality;
• transparent ranking criteria;
• non-discrimination obligations;
• access guarantees;
• separation of marketplace and competing business functions.

The Bundeskartellamt's digital-market enforcement experience is likely to influence this development.

10. Sustainability and Competition Law

Future GWB reform may increasingly address environmental objectives.

Competition law could encounter agreements involving:

• climate commitments;
• joint decarbonisation;
• green supply chains;
• shared environmental standards;
• sustainable production agreements.

The challenge will be balancing:

competitive harm

against

measurable environmental benefits.

Future reform may therefore clarify the treatment of sustainability agreements under German competition law and their relationship with §1 GWB and Article 101 TFEU.

11. Faster Competition Enforcement

Digital markets change much faster than traditional administrative proceedings.

A five-year investigation may be ineffective where market conditions change every six months.

Future GWB reform may therefore provide:

• accelerated proceedings;
• interim measures;
• stronger information-gathering powers;
• automated market monitoring;
• digital evidence preservation;
• algorithmic auditing;
• expedited remedies.

The objective would be to prevent:

procedural delay from becoming a competitive advantage for dominant firms.

12. Stronger Powers of the Bundeskartellamt

The Bundeskartellamt may increasingly become a continuous market regulator, rather than merely an authority investigating individual violations.

Future powers could include:

• continuous monitoring of systemic platforms;
• mandatory reporting;
• algorithmic transparency;
• compliance audits;
• technical inspections;
• data-access orders;
• interoperability orders;
• periodic competitive-impact assessments.

This would represent a significant evolution from traditional ex-post enforcement.

13. Interaction With the Digital Markets Act

Future GWB reform must coexist with the EU Digital Markets Act (DMA).

The DMA provides EU-wide ex-ante obligations for designated gatekeepers, while the GWB provides Germany-specific competition enforcement tools.

Future reform could therefore clarify:

• jurisdictional boundaries;
• information sharing;
• parallel investigations;
• remedy coordination;
• German enforcement of non-DMA digital conduct;
• interaction between §19a GWB and DMA obligations.

The long-term objective should be to avoid:

regulatory duplication + contradictory remedies + enforcement gaps.

14. Constitutional and Ordoliberal Dimension

German competition law has historically been influenced by ordoliberalism.

The central concern is not simply whether consumers pay a higher price but whether private economic power becomes sufficiently concentrated to undermine competitive order.

Future GWB reform may therefore strengthen concepts such as:

• competitive freedom;
• market openness;
• economic pluralism;
• freedom of entrepreneurial action;
• prevention of private economic domination.

This becomes especially important where digital platforms operate as quasi-private rulemakers.

15. Six Important Case Laws

1. Facebook/Bundeskartellamt — BGH, KVR 69/19 (2020)

The German Federal Court of Justice dealt with the Bundeskartellamt's abuse proceedings concerning Facebook's combination of user data from different sources.

Importance

The case demonstrated that:

• data can be connected to market power;
• privacy-related conditions may have competition implications;
• exploitative conduct can occur even where users do not pay monetary prices.

Future relevance

It provides an important foundation for future GWB regulation of:

• data aggregation;
• privacy-competition interaction;
• platform ecosystems;
• data-driven dominance.

2. Facebook — Bundeskartellamt Proceedings

The Bundeskartellamt's Facebook decision represents a major development in German digital competition enforcement.

The authority examined the relationship between Facebook's market power and its ability to impose extensive data-collection conditions.

Future relevance

The case supports a broader conception of competitive harm in digital markets, particularly where:

market power + data extraction + platform dependence

operate together.

3. Google Shopping — European Commission / General Court

The Google Shopping litigation concerned preferential treatment of Google's comparison-shopping service in search results.

Importance

The litigation demonstrated the difficulty of dealing with:

• self-preferencing;
• platform neutrality;
• vertically integrated digital ecosystems;
• leveraging of search dominance.

Future GWB relevance

German reforms may develop more explicit rules for self-preferencing and platform neutrality, particularly under §19a.

4. Google Android — European Commission / EU Courts

The Android case concerned Google's use of contractual arrangements involving the Android ecosystem.

The case illustrates how dominance can be reinforced through:

• tying;
• contractual restrictions;
• ecosystem control;
• default arrangements.

Future GWB relevance

It supports stronger scrutiny of ecosystem strategies involving:

• operating systems;
• app stores;
• search engines;
• AI assistants;
• cloud services.

5. Intel v Commission — CJEU

The Intel litigation is significant for the treatment of exclusionary rebates and effects-based analysis.

Importance

The case illustrates the continuing tension between:

• formal presumptions;
• economic effects;
• actual foreclosure;
• dominant-firm conduct.

Future GWB relevance

Future German reforms must balance stronger presumptions against dominant platforms with procedural fairness and effects-based assessment.

6. United Brands v Commission — CJEU

United Brands remains a foundational authority concerning abuse of dominance.

It established important principles concerning:

• dominant position;
• market power;
• exclusionary conduct;
• unfair trading conditions;
• market definition.

Future GWB relevance

The case provides the traditional foundation from which modern digital competition law is evolving.

16. Additional Relevant Case Laws

Microsoft — EU competition litigation

Microsoft demonstrates the importance of interoperability and access to essential technological interfaces.

Future GWB relevance: stronger interoperability remedies for digital ecosystems.

Bronner

The case established a restrictive approach to compulsory access under the essential-facilities doctrine.

Future GWB relevance: future digital infrastructure regulation may require clearer standards for when access to cloud, data or computing infrastructure becomes competitively indispensable.

Deutsche Telekom

The case demonstrates how pricing and access conditions imposed by a dominant infrastructure operator can constitute exclusionary abuse.

Future GWB relevance: important for telecommunications, cloud and digital infrastructure.

Amazon Marketplace

European and German competition proceedings involving Amazon illustrate the competitive risks associated with platforms simultaneously acting as:

• marketplace operators; and
• competing sellers.

Future GWB relevance: supports stronger regulation of platform neutrality and use of marketplace data.

17. Possible Future Reform Model

A future GWB could develop around five regulatory layers:

This would create a hybrid system combining:

traditional antitrust + structural regulation + digital market regulation.

18. Major Challenges

Future GWB reform will nevertheless face important difficulties.

1. Over-regulation

Aggressive intervention could discourage investment and innovation.

2. Legal uncertainty

Technology evolves faster than statutory provisions.

3. EU competence

German rules must remain compatible with EU competition law and the DMA.

4. Constitutional review

Expansive administrative powers must respect proportionality and due process.

5. Innovation risks

Intervention against successful firms could unintentionally protect inefficient competitors.

6. AI attribution

Determining responsibility for autonomous algorithms may become increasingly difficult.

7. International enforcement

Digital companies operate across jurisdictions, requiring coordination with the EU, US and other authorities.

19. Overall Future Direction

The future GWB is likely to become:

More preventive
→ intervention before dominance becomes irreversible.

More structural
→ greater willingness to address ecosystem architecture.

More technological
→ algorithmic auditing, data analysis and AI governance.

More continuous
→ monitoring rather than isolated investigations.

More cross-market
→ assessment of ecosystems rather than individual products.

More internationally coordinated
→ stronger cooperation with EU and foreign competition authorities.

More constitutional/ordoliberal
→ protection of competitive market structures rather than price competition alone.

Conclusion

The future reform of the GWB is likely to transform German competition law from a predominantly ex-post antitrust framework into a hybrid system combining competition enforcement, ex-ante digital regulation and structural market governance.

The most significant transformation will probably concern §19a GWB, digital ecosystems, AI-mediated markets, data concentration, cloud and compute infrastructure, algorithmic coordination, self-preferencing and structural remedies.

The enduring German principle, however, is unlikely to disappear: competition law should preserve an open and contestable market order by preventing excessive private economic power from becoming entrenched.

Thus, future GWB reform can be understood as an evolution from traditional abuse control toward governance of systemic market power.