12th Amendment to the Act against Restraints of Competition: The key changes in the government’s draft bill

The Federal Government has now submitted a draft of the 12th ARC Amendment (“Revised ARC Draft”). Compared to the preliminary draft of the Federal Ministry for Economic Affairs and Energy (“BMWE ARC Draft”), many of the planned changes remain in place, while at the same time there are important adjustments—particularly regarding merger control—as well as new regulations for the press and agricultural sectors. We provide an overview of the most significant changes and their practical implications.

The 12th ARC Amendment continues to take shape: On August 14, 2026, the Federal Government submitted its draft bill to the Bundesrat. It builds on the working draft issued by the Federal Ministry for Economic Affairs and Energy on June 4, 2026, which we have previously reported on. While many of the proposed changes were adopted without modification, the government’s Revised ARC Draft includes clarifications and adjustments in some areas relevant to practice, as well as a few new provisions. Below, we summarize what remains the same and what has changed compared to the ministry’s draft.

What Remains 

The government draft adopts the increase in turnover thresholds in accordance with Section 35 of the BMWE ARC Draft. 

The government’s Revised ARC Draft also contains no significant changes from the BMWE Draft with regard to the following points:

• the extension of the scope of application for decisions by the Federal Cartel Office (FCO) pursuant to the absence of grounds for action to vertical agreements under Section 32c(4), sentence 1 Revised ARC Draft,
• the right to file an appeal without leave pursuant to § 77 Revised ARC Draft, 
• the limited term of office for the President of the FCO under Section 51a of the Revised ARC Draft,
• the introduction of various procedural simplifications, such as more flexible, public oral hearings, reorganized access to files, the option of electronic communication (Sections 56, 56a, 56b, and 59 Revised ARC Draft) or publication requirements (Section 43(4) Revised ARC Draft, Section 61(3) Revised ARC Draft),
• the extension of the supervision of abuse in the energy sector under Section 29 ARC pursuant to Section 187(1) Revised ARC Draft,
• the amended remedies against ministerial authorization pursuant to Section 73(2) Revised ARC Draft and
• the adjustment of fees pursuant to Section 62(2), sentence 2 Revised ARC Draft. 

We have already reported on these points and outlined the practice-relevant changes in the draft bill.

What is changing
 

Merger Control

The government Revised ARC Draft clarifies certain aspects of the proposals contained in the ministry draft and, in some cases, introduces new provisions.

Compared to the BMWE ARC Draft, the government clarifies the expanded scope of application of the transaction value threshold under Section 35(1)(2)(b) of the Revised ARC Draft. Accordingly, transactions will in the future also fall within the scope of the transaction value threshold if the target company is not yet operating to a significant extent in Germany at the time of the merger but is highly likely to do so in the future. While the BMWE ARC Draft generally referred to a time horizon of up to two years, its explanations remained vague.

The Revised ARC Draft, on the other hand, contains clearer explanations. Specifically, to determine whether the company will operate in Germany, the assessment is to be based on “the anticipated commencement of operations within the next two years.” A longer forecast period is to be permitted only in the event of “clear indications to the contrary.” In addition, the FCO is to revise its guidelines on the transaction value threshold by the end of July 2027, thereby providing further guidance on the criteria and the forecast period.

Another important change concerns the new notification procedure under Section 39(1), sentence 2, of the Revised ARC Draft for transactions that fall within the scope of the transaction value threshold. According to the government draft, this is now to be voluntary. The BMWE ARC Draft provided for a mandatory notification requirement. In contrast, the government emphasizes in Section 39(1), sentence 2, of the Revised ARC Draft that proposed transactions “may” be notified. 

The government’s Revised ARC Draft thus follows a proposal of the FCO. In its comments on the preliminary draft, the FCO had suggested that the notification procedure be structured on a voluntary basis. This is intended to give companies the option of notifying a proposed merger directly, without first going through a preliminary notification procedure. This is to be welcomed, as in cases where it is clearly not possible to waive the notification requirement, direct notification must be an option in order to avoid delays in the subsequent merger control proceedings and to set the relevant deadlines in motion as quickly as possible through the regular notification process.

Digital Merger Control Notification 

There are only minor changes regarding the digital merger control notification under Section 39(1), sentence 3, of the Revised ARC Draft. Compared to the BMWE ARC Draft, the government’s draft omits the option to notify merger proposals via a De-Mail address. 

“Procurement Screening” by the FCO 

The ministry’s draft already provided for the introduction of a systematic evaluation of procurement data in the form of a procurement screening pursuant to Section 32h of the BMWE ARC Draft. This is intended to grant the FCO the authority to uncover bid-rigging schemes regardless of whether there is any suspicion. The government’s Revised ARC Draft adopts this basic concept but modifies certain details. For example, the FCO is now granted its own authority to collect and store data. 

The end of the retention period is clarified to the effect that, in the case of an antitrust violation, it should be linked to the finality of the decision or the final conclusion of (judicial) proceedings. This resolves an ambiguous formulation in the draft bill, which had taken into account only the pendency of proceedings before the FCO or a court. This creates legal certainty that, in the event of the prosecution of an antitrust violation, the deadline is extended by the period until the proceedings are concluded with a final decision or until a court proceeding is concluded with a final judgment. 

Substantive Changes

Compared to the BMWE ARC Draft, two topics are entirely new in the government’s Revised ARC Draft. Specifically, special provisions are provided for the press sector—such as for restructuring mergers—as well as the possibility of sustainability partnerships in agriculture. 

Simplifications to the restructuring rules are intended to address the challenges of digital transformation in the press landscape. Pursuant to Section 36(1), sentence 2, no. 3 of the Revised ARC Draft, larger press publishers may now also take advantage of this option. In addition, the scope of application for takeovers is to be expanded to include all forms of mergers.

Furthermore, the government provides that certain sustainability collaborations between agricultural producers are exempt from the antitrust prohibition pursuant to Section 28(4) of the Revised ARC Draft. In doing so, it follows EU competition law and applies its sectoral exemption analogously to purely domestic situations.

Takeaway

Some changes in the government draft are particularly relevant for business practice. This applies in particular to the now-proposed voluntary nature of the notification procedure in the context of the transaction value threshold, as well as to the new provisions for the agricultural and press sectors. In addition, the government’s Revised ARC Draft largely clarifies the BMWE ARC Draft through minor substantive additions, thereby eliminating many ambiguities.

The federal government's draft bill must now go through the rest of the legislative process. It may still be subject to further changes during this phase. 

We’ll keep you updated.

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