{"id":3402,"date":"2020-02-19T08:45:24","date_gmt":"2020-02-19T07:45:24","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=3402"},"modified":"2020-02-19T09:25:55","modified_gmt":"2020-02-19T08:25:55","slug":"conference-debriefing-18-gwb10-verbaendeanhoerung","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2020\/02\/19\/conference-debriefing-18-gwb10-verbaendeanhoerung\/","title":{"rendered":"Conference Debriefing (18): GWB10-Hearing"},"content":{"rendered":"\n

German Ministries send their draft bills to\nhearings of stakeholders. Now it was the turn of the draft competition law\nreform that had to pass through this hellfire. Rupprecht Podszun went to Berlin\nto see how the Ministry fared with the representatives of industries, Google\nand the like\u2026<\/em><\/p>\n\n\n\n

Name of the event:<\/strong> Hearing on the GWB Digitisation Act (#GWB10)\n(\u201cVerb\u00e4ndeanh\u00f6rung\u201d in German)<\/p>\n\n\n\n

Place & Time:<\/strong> Federal Ministry of Economics and Energy,\nauditorium of the old Kaiser Wilhelm Academy, 18 February 2020<\/p>\n\n\n\n

Host:<\/strong> The fathers and mothers of the 10th amendment of\nthe German competition act (GWB) – with Dr. Philipp Steinberg, a high-ranking\ndirector in the Ministry, as a moderator<\/p>\n\n\n\n

Audience:<\/strong> Huge! Nearly 100 lobbyists (m\/f\/d), including the\nregulars of antitrust lobbyism such as Hildegard Reppelmund (DIHK), Niels Lau\n(BDI) and Andreas Gayk (Markenverband), but also a colourful mix of such\ndiverse personalities as Hausfeld\u2019s Thomas H\u00f6ppner (who was still having the\njoy of some of the questions\nof the ECJ<\/a> in Google Shopping<\/em>\nwritten all over his face), Christina Oelke from VAUNET, Rena Tangens from\nDigitalcourage, Stephan Manuel Nagel from Taylor Wessing or Markus Wirtz from\nGlade Michel Wirtz – to drop some random names (most of whom come from D\u00fcsseldorf\nbut that is really<\/em> pure coincidence).\n<\/p>\n\n\n\n

100 lobbyists in one place\nwho want to tinker with antitrust law? Sounds like a suicide mission for the\nauthors of that draft bill!<\/h2>\n\n\n\n

Don\u2019t worry\ntoo much. These lobbyists are friendly people, and they met Philipp Steinberg\nwho hosted that in a very hands-on manner shrugging off some of the criticism.\nFor instance, the lobbyist for German car manufacturers said that there are so\nmany open question in the law, for instance regarding the access to data right.\nThat would require a lot of judicial work in the aftermath of Bundeskartellamt\nproceedings. Steinberg, matter of fact, explained the basics of reforming\nrules: That’s how it is when there are new rules – new rules, new terms, new\nquestions.<\/p>\n\n\n\n

So, what do stakeholders\nthink of the draft?<\/h2>\n\n\n\n

Stating the\nobvious: Sabine Frank of Google did not really seem to be enthusiastic,\nremember, please, that Germany intends to introduce a tougher regime for GAFAs;\nthe German start-up association is afraid of the new section 39a of the act\nthat proposes new merger notification thresholds for certain companies (mainly\ntargeting German regional markets, but possibly also catching some start-ups);\neveryone thinks it’s great that \u2013 apart from that rule \u2013 the thresholds of\nmerger control are being raised; and that in future you should be able to get a\ndeclaration from the Bundeskartellamt that it sees no reason to take action in\ncases of co-operations \u2013 even though it was suggested that that should be\nextended to all co-operations, not just those of competitors.<\/p>\n\n\n\n

But there\nwas even more cheering. Berlin was, of course, from a Rhineland perspective,\nstormy and drizzly as usual. But inside that packed auditorium there was a nice\nwarm summer breeze at times for the authoring team of the draft bill. Thorsten\nK\u00e4seberg, head of the competition department in the Ministry, sat facing the\naudience with Philipp Steinberg and his staffers Tobias Brenner, Annett Arlt,\nDaniel F\u00fclling, Maja Murza and Tobias Glass. At the beginning, Steinberg had labelled\nthe reform a “Gesamtkunstwerk”, something like a masterpiece, that is\nfollowing a certain \u201cphilosophy\u201d, and I was not really able to figure out\nwhether he really meant it or was joking a bit. <\/p>\n\n\n\n

\"\"
Setup for the hearing: First, Philipp Steinberg and his team gave a short introduction, than it was their job to listen.<\/figcaption><\/figure>\n\n\n\n

But they earned much\npraise?!<\/h2>\n\n\n\n

Ulrich Herfurth from the association of family-run businesses “Die Familienunternehmer” was the first to congratulate them on this pioneering act. Alexander Barthel from the German Confederation of Skilled Crafts (Zentralverband des Deutschen Handwerks<\/em>) made it clear in no time at all why companies need data access and how skilled crafts companies are worried about losing the customer interface: “Can we communicate via the display – or is someone else picking this up?\u201d The association of small and medium-sized enterprises, \u201cMittelstandsverbund\u201d, the media and newspaper trade associations, consumer organisation VZBV and also online retailer Zalando (Anselm Rodenhausen: “this could be one of the first fashionable trends from Germany that set an international example”) were impressed<\/a>. Having said, you never get it unrestrained: “That\u2019s an excellent reform \u2013 and a not quite so excellent letter, that your Minister sent with his colleagues to Mrs. Vestager”, Peer Robin Paulus from Familienunternehmer said. Peter Altmaier, the German Minister, had teamed up with his colleagues from France, Poland and Italy, and had recently written to the Commissioner<\/a> for Competition and urged her to please come up with some reforms soon. It was pointed out that it does not make sense to be tougher on the German level and to relax rules at EU level at the same time. <\/p>\n\n\n\n

Yeah, a European solution\nsurely is much better, isn\u2019t it?<\/h2>\n\n\n\n

Of course! But as long as the EU cannot or will not act, the call for the international level is simply an attempt to prevent any new rules. Mark Zuckerberg has already been touring government<\/a> offices with a call for international reform \u2013 knowing full well that the best thing that could happen to him would be to set up an international working group that would meet for a few years and then to sink into oblivion – see the Financial Transaction Tax. Steinberg stressed that the draft was in some respects closely aligned with the British Furman Report and that the friends from France were cooperating closely on these issues anyway. The EU will present its agenda for digital issues today, including competition law, but Germany definitely is a step ahead. Incidentally, since we are talking EU law here: The draft bill deprives the L\u00e4nder<\/em> cartel authorities of their competence to apply EU law. That is the price to be paid for the ECN plus requirements.<\/p>\n\n\n\n

What did BDI, that\nindustry association, say? It was my understanding that they are in charge in\nGermany.<\/h2>\n\n\n\n

Ha-ha, yes,\nthat’s a fine subject. BDI said: Nothing. Representative Ulrike Suchsland\nopened her statement by saying that unfortunately the BDI is not able to speak on\nthe issues of abuse control since internal coordination has not yet been completed.<\/p>\n\n\n\n

Whut? That draft had already been around for months! Do they not follow you\u2019re your blog at BDI? <\/h2>\n\n\n\n

For me, this was the disappointment<\/s> surprise of the day, and if I were pessimistic, I would interpret a lot more into that regarding the abilities of German industrial powers to play digital \u2013 or at least to play politics. For months, or, for years we have been discussing how the European economy can hold its own against the Silicon Valley giants, and then the Ministry comes up with a broad pitch on shaping policy in the digital age \u2013 and the most important German business association goes into the hearing without being able to say a word on this. I understand they will submit a statement later in the process, but as a person who cares about the welfare of the European economy, I have the feeling that industry lacks a vision. That worries me, to be frank. The GAFA companies paralyse some of the associations (such as Bitkom, the association of IT companies) with their sheer membership, and they show up themselves in such hearings with their lobbyists, yet German top companies remain silent. The BDI limited itself to general comments that B2B platforms should not be restricted too heavily and that access to data may be a somewhat problematic thing. Bitkom\u2019s Rebekka Wei\u00df did at least make the point that the eligibility of data access claims could be reconsidered. Steinberg: “And your opinion on the regulatory proposal in section 19a?\u201d – “None yet.” – “See, we must always have an opinion.\u201d Well, at Bitkom, Google & Co. are sitting at the table with friends, frenemies and enemies. <\/p>\n\n\n\n

I read that Amazon\nrecently joined the German retailers\u2019 association HDE.<\/h2>\n\n\n\n

I read that\ntoo, and somehow I had this picture in my head of lambs voluntarily inviting\nthe wolf into their herd. In any case, Peter Schr\u00f6der of HDE could not have put\nhis statement into more amazonistic tones \u2013 there is no need to change the law\non abuse, there is a threat of over-regulation. The lowering of intervention\nrequirements for interim measures is wrong. Incidentally, the BDI was also in a\nposition to speak on the latter matter, and also urged that the rights of\ndefence under the rule of law should not be thrown overboard in the case of interim\nmeasures. Ulrike Suchsland said that if the problem was that Bundeskartellamt needs\nto speed up, it would be better to strengthen its resources. Andreas Mundt will\nprobably second her on that! <\/p>\n\n\n\n

\"\"
The day’s agenda.<\/figcaption><\/figure>\n\n\n\n

Apart from abuse control,\nwhat was the focus of attention?<\/h2>\n\n\n\n

Merger\ncontrol, of course. Here the devil is in the details: the bundling of minor\nmarkets could ruin the joy of raising the thresholds. The so-called Remondis<\/em> rule in section 39a, which\napparently slipped into the draft bill only at the last minute, will certainly\nbe discussed again \u2013 or tailored more precisely to capture what the\nBundeskartellamt is aiming for. And, oh wonder, all business associations would\nbe pleased if the merger notification thresholds were even higher and were regularly\nplaced at higher levels<\/s> reviewed. <\/p>\n\n\n\n

Surprisingly,\nthe ministerial approval, this particular feature of political interference\nwith prohibitions by the Bundeskartellamt, was also briefly discussed. This was\nprobably due to the fact that on the day before the hearing there was an article\non this in a leading German newspaper. I spare you the details.<\/p>\n\n\n\n

Never mind! Anything else?<\/h2>\n\n\n\n

Very little\nwas said about the new fining laws and procedural adjustments in the wake of\nECN plus. Bitkom proposed to delete fines for individuals in German law (that\nwe have other than on EU level); the BDI wanted more far-reaching legal\nprivilege. And Facebook, that most benign caretaker of personal data from Menlo\nPark, warned that access to data obligations should not run counter to privacy.\nUm, yeah, um… <\/p>\n\n\n\n

Hihihi. Was there any lobbying\nwhere you thought: they know their job?<\/h2>\n\n\n\n

Absolutely!\nIn one part of the amendment that I had never really looked at, section 47k, the\nMinistry wishes to introduce an obligation for petrol stations to report the\namount of fuel they sell. At present they already need to live stream their\nprices to the Bundeskartellamt that in turn enables apps to inform you where\nyou find the cheapest petrol station around. The representatives of this trade\nneeded no more than three sentences or so to make it abundantly clear that further\nduties to report are completely out of proportion.<\/p>\n\n\n\n

They have all my\ncompassion\u2026 What do we take from this event of the 100?<\/h2>\n\n\n\n

With so\nmany who have a say, opinions are neutralizing each other: Some want to sharpen\nup section 19a, others want to get rid of it. Some celebrate this, others hate\nthat. The associations representing the German Mittelstand<\/em> were very supportive, the associations of the big ones were\nrather undecided, and Google & Facebook have few voters in Germany. If the\nlaw is now being tweaked, then, in my cautious assessment, the merger control\nthresholds in section 39a and the data access claims are most likely to be looked\nat, but more in nitty-gritty details. The general line seems to hold. And, of\ncourse, the Ministry may think about that petrol station bureaucracy again! <\/p>\n\n\n\n

\"\"
Up to them, now: Tobias Brenner, Annett Arlt, Thorsten K\u00e4seberg, Philipp Steinberg, Daniel F\u00fclling, Maja Murza and Tobias Glass from the Ministry of Economics (f l t r).<\/figcaption><\/figure>\n\n\n\n

What next?<\/h2>\n\n\n\n

The hearing\nbrought the discussion out of the back rooms and legitimised it in public \u2013 now\nwe know from each other where we stand, what alliances we can forge, what the Ministry\nhas as homework. Today, it\u2019s the L\u00e4nder<\/em>\nbeing heard, a good tradition in German federalism, and also, so is my\nunderstanding, the famous Studienvereinigung<\/em>\nKartellrecht<\/em> will discuss a lengthy\nopinion concerning the more doctrinal legal issues with Thorsten K\u00e4seberg and\nhis team. By the way, on his computer, the logo of a well-known GAFA company\nwas shining brightly, so maybe not all is lost for the friends from the Valley.\nWhen the Ministry of Economics has the final draft, it goes to the cabinet and\nbecomes an official government draft. However, it was stated that the\nparliamentary procedure is only scheduled for the second half of 2020. For my\ntaste, this could be more ambitious, nowadays you don’t even know who will be\nin which office next week in Germany… <\/p>\n\n\n\n

Steinberg\nsummed it up: “We didn’t succeed in doing this completely not-good.\u201d\nLinguistically this could probably be expressed less not-good, but in substance\nhe has a point.<\/p>\n\n\n\n

Do say:<\/strong> “We do not want industrial policy in EU\nmerger control, I say this quite clearly.” (Dr. Philipp Steinberg, BMWi)<\/p>\n\n\n\n

Dialogue of the day: <\/strong>“Now the lady in the middle of\nthe room… from the middle, I would expect a statement that this is a good\ncompromise!” (Steinberg) \u2013 \u201cI’m from Google.\u201d (Sabine Frank) <\/p>\n","protected":false},"excerpt":{"rendered":"

German Ministries send their draft bills to hearings of stakeholders. Now it was the turn of the draft competition law reform that had to pass through this hellfire. Rupprecht Podszun went to Berlin to see how the Ministry fared with the representatives of industries, Google and the like\u2026 Name of the event: Hearing on the GWB Digitisation Act (#GWB10) (\u201cVerb\u00e4ndeanh\u00f6rung\u201d in German) Place & Time: Federal Ministry of Economics and Energy, auditorium of the old Kaiser Wilhelm Academy, 18 February…<\/p>\n

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