On 24 September 2026, the German government’s draft of the 12th amendment to the German Act Against Restraints of Competition (ARC) (“12th Amendment”) underwent its first reading in parliament and was referred to the competent parliamentary committees for further deliberation. It is generally expected that the 12th Amendment will enter into force later this year.
As always, the government draft already provides a very clear indication of the changes that can be expected in German competition law. Below, we briefly present the amendments that are likely to be most relevant in practice.
To date, relatively little attention has been paid to the new provision in Section 28(4) ARC, presumably because it merely transposes an existing European rule into German law.
For many years already, Section 28 ARC provided for a sector-specific exemption for agricultural producers, pursuant to which Section 1 ARC does not apply to agreements concerning the production and marketing of agricultural products. The newly introduced Section 28(4) ARC incorporates into the ARC the exemption contained in Article 210 of the Common Market Organisation Regulation (“CMO”) and extends it to agreements between one or more producers on the one hand and one or more market participants operating at different levels of the food supply chain, including production, processing, trade and distribution, on the other hand.
In 2023, the European Commission had issued detailed guidelines explaining which sustainability agreements may benefit from this exemption and under what conditions. The guidelines are available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C_202301446.
Pursuant to Article 210(6) CMO, such agreements may be submitted to the Commission for confirmation as to whether the conditions of the exemption are satisfied. It seems that so far, this procedure has been used only once, namely in relation to an agreement involving French wine producers. The agreement aimed at preserving organic farming standards and their high environmental value. To this end, a non-binding reference purchase price (“prix d’orientation”) for bulk wine was established, covering costs and securing a 20% margin. The Commission confirmed that the agreement fell within the scope of the exemption provided for by Article 210a CMO.
Another existing exemption is being expanded in the press and media sector. During the preparatory stages of the legislative process, it had been considered to expand the current exemption to journalistic and editorial cooperation, but this proposal was ultimately rejected.
Section 30(2b) ARC now expands the existing exemption so that it also applies to agreements between private broadcasting undertakings that are intended to strengthen the economic basis of the participating companies in intermedia competition. The amendment is a response to the competitive pressure faced by private broadcasters, not least from new forms of media.
The antitrust assessment of business practices is often complex. For this reason, the 7th amendment to the ARC already introduced Section 32c ARC in 2005, enabling the Federal Cartel Office (Bundeskartellamt), to determine for specific horizontal agreements, that there is no reason for enforcement action. In practice, such decisions are often referred to as “Chairman’s Letters” (Vorsitzendenschreiben), while the provision itself is commonly described as a “safe harbour” rule.
In practice, Section 32c ARC has had only limited significance to date. At the time of its introduction, approximately five such proceedings per year were anticipated. Since this estimate was significantly undershot, Section 32c ARC is now being extended through a new subsection (4) to cover vertical cooperation agreements as well. It will be interesting to see whether the considerable practical relevance of vertical cooperation will be reflected in a greater number of such proceedings. That would not come as a big surprise.
The practical centrepiece of the 12th GWB amendment lies in several modifications to German merger control.
a. Increase of Turnover Thresholds
The turnover thresholds above which concentrations must be notified in Germany are being increased, and significantly at that:
The proposed increases have not gone unchallenged. During the legislative process, the Federal Cartel Office pointed out that the thresholds had already been raised substantially in 2021. The authority appears concerned that a further increase could create an enforcement gap. It is therefore possible that this matter has not yet been finally settled.
b. Transaction Value Threshold
A concentration is also subject to notification in Germany where the second domestic threshold is not met (i.e., where a second undertaking does not generate the currently required domestic turnover of EUR 17.5 million), but where instead:
The concept of substantial domestic activities is now expanded to include target undertakings that at present are not yet active in Germany, but are expected to become substantially active in Germany in the future. The earlier ministerial draft limited the period for the respective forecast to up to two years. The government draft further clarifies that a longer forecast period may only be used where there are “clear indications”.
A corresponding extension of the authority’s powers had already been contemplated during the 9th amendment to the ARC but had not been adopted at that time. Since the Federal Cartel Office was consequently unable to review important transactions such as Microsoft/OpenAI or Microsoft/Inflection, this extension is now being incorporated into the ARC. But the reform is also relevant for the pharmaceutical sector, where acquisition prices for product rights with blockbuster potential may well reach or exceed EUR 400 million.
c. Preliminary Notification Procedure
A somewhat unusual innovation is the introduction of a preliminary notification procedure for concentrations that may be notifiable solely by virtue of the transaction value threshold. The purpose of this procedure is to allow a preliminary assessment of whether there actually is a formal filing obligation.
In the first draft of the amendment, the preliminary notification was intended to be mandatory. However, this met with substantial opposition because it was expected that in practice the information required for the preliminary notification would involve essentially the same effort as a full merger notification. The preliminary notification has therefore been made voluntary. Parties to a concentration may thus obtain an initial assessment from the Federal Cartel Office as to whether a formal filing is required. To be clear, this option is limited to transactions that are potentially notifiable solely because the transaction value threshold is exceeded.
d. Merger Filings to Become Fully Digital
German merger control is leaving the age of paper filings behind. Under the new Section 39(1) sentence 3 ARC, merger notifications may only be submitted through one of the following channels:
Pursuant to Section 187(15) ARC, a transitional period remains in place until 1 January 2028, during which written filings continue to be sufficient.
a. No Access to File for Admitted Parties
In cartel proceedings, potential victims are often admitted to the proceedings as “admitted parties”, a status available to persons whose economic interests are affected. Access to the case file would be highly useful for such admitted parties in preparing follow-on damages actions. The 12th Amendment now clearly rejects that approach. Section 56b(1) sentence 2 ARC expressly clarifies that admitted parties are not entitled to access the case file.
b. Appeals on Points of Law Against Decisions of the Higher Regional Courts No Longer Subject to Leave
A central objective of the 12th Amendment is a simplification of legal procedures. One such simplification concerns so-called “appeals on points of law” (Rechtsbeschwerden) to the Federal Court of Justice (BGH) against decisions of the Higher Regional Courts (OLG). Until now, such appeals required express permission of appeal that had to be granted by the respective Higher Regional Court. The new Section 77 ARC abolishes this requirement. This simplifies and accelerates judicial review and strengthens the role of the Federal Court of Justice.
c. Publication of All Decisions
A particularly significant innovation for antitrust practitioners is found in Section 43(4) ARC. The Federal Cartel Office will now be required to publish its decisions in full text, irrespective of whether an appeal is pending. Information constituting a party’s trade or business secrets, or whose publication would conflict with its legitimate protected interests, must be appropriately redacted.
This development has two sides. On the one hand, practitioners gain rapid access to the authority’s latest decisions. On the other hand, publication may in some cases entail significant adverse consequences for the companies concerned. Questions will frequently arise as to what should be redacted and what should not.
d. Fees
Maximum fees and average fee levels are increased significantly in some areas. The average fee for clearance of a concentration in Phase I increases comparatively modestly from EUR 7,500 to EUR 10,000, while the average fee for Phase II proceedings increases from EUR 30,000 to EUR 50,000.
