BKartA may ‘flip’ further GAFA probes to new 19a legal basis – Mundt

The Bundeskartellamt (BKartA) may flip or extend further ongoing ‘big tech’ probes into new investigations based on the Article 19a provision of Germany’s competition act, the president of the agency told this news service.

At the beginning of the year, the German parliament adopted the tenth amendment of the competition act, which specifically addresses issues raised by the digital economy, including abusive conduct by large digital firms.

In January, German antitrust officials broadened an ongoing investigation into Facebook’s network linking with Oculus to include reviewing the case under the newly-passed digital competition act. The agency was previously examining Facebook’s conduct under conventional abuse of dominance provisions.

“There are even other cases where we’re thinking about extending or even flipping one or the other (prior cases) under 19a,” said Andreas Mundt, president of the German competition authority in an interview with PaRR.

Mundt flagged the two ongoing Amazon cases with regard to price gouging and brand-gating that are being pursued under the German competition act’s older abuse provisions. “They’re still under the old regime so far, but we’ll see,” he said, of those cases.

Asked whether flipping or extending such probes could expose the agency to court challenges, Mundt responded that this was not a concern.

“Even after extensions or changes in probes there is ample occasion to safeguard defence rights,” said Mundt in response to the argument that changing the legal basis for a probe from its current basis to one under 19a would curtail rights of defence.

“The only one where we extended an existing case to section 19a is Facebook Oculus, but you see that is so close to original Facebook case – it is also about combination of data from various sources. But of course, in this new case, Facebook will have the opportunity to state their view, including their criticism on the previous case. Thus I’m not afraid that I’d be under suspicion to have restricted rights of defence of any company,” said Mundt.

Mundt also said that the fact there’s only one instance of appeal under section 19a does not limit the scope of companies’ rights of defence. In these cases, the Bundesgerichtsof (BGH) will enjoy unlimited jurisdiction and also assess questions of fact.

“Before the legislature took the decision to confine judicial review to one instance there was a hearing in the Bundestag and there was a clear result that this was not against the constitution, it is an appropriate legal means to speed up judicial review in timecritical matters of substantial public interest,” said Mundt.

This interview was conducted by Jacob Parry

Quelle: PaRR, 05 October 2021