(1) An undertaking is dominant where, as a supplier or purchaser of a certain type of goods or commercial services on the relevant product and geographic market, it
1. has no competitors,
2. is not exposed to any substantial competition, or
3. has a paramount market position in relation to its competitors.
(2) The relevant geographic market may be broader than the area of application of this Act.
(2a) The assumption of a market shall not be invalidated by the fact that a good or service is provided free of charge.
(3) In assessing the market position of an undertaking in relation to its competitors, account shall be taken in particular of the following:
1. its market share,
2. its financial strength,
3. its access to data relevant for competition,
4. its access to supply or sales markets,
5. links with other undertakings,
6. legal or factual barriers to the market entry of other undertakings,
7. actual or potential competition from undertakings domiciled within or outside the area of application of this Act,
8. its ability to shift its supply or demand to other goods or commercial services, and
9. the possibility for the opposite market side to switch to other undertakings.
(3a) In particular in the case of multi-sided markets and networks, in assessing the market position of an undertaking account shall also be taken of:
1. direct and indirect network effects,
2. the parallel use of several services and the switching costs for users,
3. the undertaking's economies of scale arising in connection with network effects,
4. the undertaking's access to data relevant for competition,
5. competitive pressure driven by innovation.
(3b) In assessing the market position of an undertaking acting as an intermediary on multi-sided markets, account shall be taken in particular of the importance of the intermediary services provided by the undertaking for accessing supply and sales markets.
(4) An undertaking is considered to be dominant if it has a market share of at least 40 per cent.
(5) Two or more undertakings are dominant to the extent that
1. no substantial competition exists between them with respect to a certain type of goods or commercial services and
2. they fulfil in their entirety the requirements of subsection (1).
(6) A body of undertakings is presumed to be dominant if it
1. consists of three or fewer undertakings reaching a combined market share of 50 per cent, or
2. consists of five or fewer undertakings reaching a combined market share of two thirds.
(7) The presumption under subsection (6) can be refuted if the undertakings demonstrate that
1. the conditions of competition are such that substantial competition between them can be expected, or
2. the body of undertakings has no paramount market position in relation to the remaining competitors.
(8) The Federal Ministry for Economic Affairs and Energy shall report to the legislative bodies on its experience with subsections (2a) and (3a) three years after the entry into force of the provisions.