(1) After publishing a report pursuant to Section 32e(4) on a sector inquiry pursuant to Section 32e(1), the Bundeskartellamt holds, without prejudice to its other powers, additional powers in accordance with subsections (2) to (4). This does not apply to cases under Section 32e(6).
(2) If there are objectively plausible indications that future concentrations could significantly impede effective competition in Germany within the meaning of Section 36(1) in one or several sectors of the economy examined in the report pursuant to Section 32e(4), the Bundeskartellamt may issue a decision ordering undertakings to notify pursuant to Section 39 all concentrations within the meaning of Section 37 in one or several of these economic sectors within three years of service of the decision. The obligation to notify concentrations under sentence 1 applies only to concentrations in which the acquiring undertaking's domestic turnover was more than EUR 50 million in the last business year and the undertaking to be acquired achieved a domestic turnover of more than EUR 1 Million in the last business year. Section 36(1) sentence 2 no 2 does not apply to concentrations notified by the undertaking in the economic sectors examined. In all other cases, the provisions of this Act applicable to concentrations within the meaning of Chapter 7 apply. If the conditions under sentence 1 continue to exist after the expiry of the three-year period, the Bundeskartellamt may extend the obligation to notify concentrations by three years; multiple extensions for three years at a time are permissible a maximum of three times.
(3) The Bundeskartellamt may issue a decision determining that a significant and continuing malfunctioning of competition exists in at least one market which is at least national in scope, in several individual markets or across markets, insofar as, based on the information available to the Bundeskartellamt at the time of its decision, the application of the authority's other powers under Part 1 of this Act appears unlikely to be sufficient to eliminate the malfunctioning of competition effectively and permanently. The decision under sentence 1 is issued against one or more undertakings which can be considered addressees of the measures under sentence 6 or subsection (4). Undertakings whose conduct and their relevance for the market structure contributes significantly to the malfunctioning of competition qualify as addressees of the measures. When selecting the addressees and the remedies, particular account is also to be taken of the undertaking's market position. The Bundeskartellamt may at a later point in time issue a decision expanding the decision under sentence 1 to include further undertakings within the meaning of sentences 2 and 3. In the event of a finding pursuant to sentence 1 the Bundeskartellamt may impose on the undertakings concerned any behavioural or structural remedies necessary for eliminating or reducing the malfunctioning of competition. The remedies may in particular include the following:
1. the granting of access to data, interfaces, networks or other facilities,
2. requirements for the business relations between undertakings in the markets examined and at different market levels,
3. the obligation for undertakings to establish transparent, non-discriminatory and open norms and standards,
4. requirements for certain types of agreements or contractual arrangements, including contractual provisions regarding the disclosure of information,
5. the prohibition to unilaterally disclose information which facilitates parallel conduct by undertakings,
6. the accounting or organisational separation of parts of undertakings or business divisions.
Section 32(2) applies accordingly.
(4) Under the conditions set out in subsection (3), the Bundeskartellamt may issue a decision ordering dominant undertakings and undertakings of paramount significance for competition across markets pursuant to section 19a(1) to dispose of shares in undertakings or assets if this measure is expected to eliminate or substantially reduce the significant and continuing malfunctioning of competition. The remedies under sentence 1 may be imposed only if the remedies under subsection (3) sentence 6 are not possible, not equally effective or would be more burdensome for the undertaking than the remedies under sentence 1. Before issuing the decision, the Monopolies Commission and the supreme Land authorities competent pursuant to Section 48(1) in whose territory the undertaking has its registered seat are to be given the opportunity to comment. The decision under sentence 1 is to be published in the Federal Gazette. Section 43(3) applies accordingly with the proviso that only the information under Section 39(3) sentence 2 nos 1 and 2 is to be published. The decision may be combined with ancillary provisions. Section 41(3) sentence 2 and subsection (4) apply accordingly. Assets have to be disposed of only if the proceeds amount to at least 50 per cent of the value determined by an auditor instructed by the Bundeskartellamt for the date of the annual financial statement preceding the decision pursuant to sentence 1. Insofar as the actual proceeds from the disposal are less than the value determined by the auditor instructed by the Bundeskartellamt, the undertaking disposing of the assets will receive an additional payment in the amount of half of the difference between the value determined and the proceeds actually received from the disposal. If the decision covers assets which prior to the initiation of proceedings under this subsection were the subject of a final clearance decision issued by the Bundeskartellamt or the European Commission or were acquired after the granting of a final ministerial authorisation, the decision is permissible only if the period between its service and the service of the merger control decision is greater than ten years. If no second-phase proceedings were initiated, the expiry of the deadline under Section 40(1) sentence 1 applies instead of the service of the merger control decision. Parts of the assets which an undertaking has disposed of due to an obligation under this subsection or due to a commitment made pursuant to subsection (6) may not be reacquired by the undertaking within five years of their disposal, unless the undertaking demonstrates that market conditions have changed in such a way that a significant and continuing malfunctioning of competition no longer exists.
(5) A malfunctioning of competition may exist particularly in the following cases:
1. unilateral supply or buyer power,
2. restrictions on market entry, market exit, the capacities of undertakings or on switching to another supplier or buyer,
3. uniform or coordinated conduct, or
4. foreclosure of access to input factors or customers through vertical relations.
When examining whether a malfunctioning of competition exists, particular account is to be taken of the following:
1. number, size, financial strength and turnover of the undertakings active in the markets concerned or across markets, the undertakings' market shares and the degree of business concentration,
2. links between the undertakings in the relevant, upstream and downstream markets or otherwise related markets,
3. prices, quantities, choice and quality of the products or services offered on the relevant markets,
4. transparency and homogeneity of the goods on the relevant markets,
5. contracts and agreements between undertakings in the relevant markets,
6. the degree of dynamism in the relevant markets, and
7. the efficiency gains demonstrated, in particular cost savings or innovations, while allowing consumers a fair share of the benefit.
A malfunctioning of competition is deemed continuing where over a period of three years it has existed permanently or occurred repeatedly and at the time the decision under subsection (3) is issued there are no indications that the malfunctioning is more likely than not to cease to exist within two years.
(6) Section 32b applies accordingly to proceedings under subsections (3) and (4).
(7) As a general rule, decisions under subsections (2) to (4) shall be issued within 18 months of publishing the final report under Section 32e(4).
(8) In order to take remedial measures pursuant to subsections (3) and (4) in markets in the railway, postal and telecommunications sectors regulated by the Bundesnetzagentur, to which sector-specific competition law applies, and the regulated electricity and gas supply networks under the Energy Industry Act [Energiewirtschaftsgesetz], the Bundeskartellamt needs the Bundesnetzagentur's agreement; the Bundesnetzagentur will in each case publish a statement on the matter. Possible remedies under subsections (3) and (4) are not to be taken into account when carrying out an assessment as part of the market analysis pursuant to section 11(2) no 3 of the Telecommunications Act [Telekommunikationsgesetz].
(9) The Federal Ministry for Economic Affairs and Climate Action shall report to the legislative bodies on the experience gained with the provision after the expiry of ten years after the entry into force of the provisions in subsections (1) to (8).