The Uniform Application of Articles 101 and 102 TFEU in German Competition Law
This chapter addresses the uniform application of Articles 101 and 102 TFEU in the context of German competition law. The Eighth Amendment to the German Act against Restrictions of Competition (“GWB”) has brought about a certain approximation to European competition law, waiving national particularities to implement European elements. However, some German traditions and specificities have remained. The intermediate status of European unification gives reason to examine the degree of the harmonization of German competition law with regard to the decentralized application of Articles 101 and 102 TFEU. The investigation provided shall not be limited to substantive and procedural aspects of Articles 101 and 102 TFEU, but rather includes issues related to merger control, to the economic activity of the public sector, and to private enforcement. The present synopsis may suggest some further need for harmonization by the upcoming Ninth Amendment to the GWB with its purpose to ensure an effective and uniform application of Articles 101 and 102 TFEU even more. This notion especially applies to judicial competition proceedings, which fall far short of the requirements as applicable in European judicial practice. In this respect, the view is supported that a criminalization of German competition law would contradict European legal requirements. Moreover, certain aspects of German merger control appear to contrast with the practice of the European Commission. The contribution concludes with some comments on the economic activity of the public sector and private enforcement with regard to the more recently introduced Directive on antitrust damages actions.