The 12th Amendment to the Act Against Restraints of Competition: Draft Bill Proposes Far Reaching Changes to German Antitrust Law

On 4 June 2026, the Federal Ministry for Economic Affairs and Energy (“BMWE”) presented a comprehensive reform package in the form of the draft bill (“ARC Draft”) for the 12th Amendment to the ARC. Overall, the aim is to make antitrust proceedings faster and more efficient. Among other things, the notification thresholds for merger control are to be raised, merger control, antitrust administrative and fine proceedings are to be digitised and streamlined, the legal remedies against ministerial authorisation are to be expanded, and a so-called procurement screening is to be introduced. Below, we provide a structured overview of the most practice-relevant proposed amendments in the draft bill.

1. Merger control: Higher turnover thresholds and extension of the transaction value threshold

Increase in turnover thresholds – Section 35(1) ARC Draft

As early as 2021, the legislature significantly raised the thresholds for German merger control. Now, five years later, a further increase is to follow. The aim is to ease the burden on both industry and the authorities, so that resources can be focused on reviewing merger proposals of particular relevance to competition.

For the first time, all three turnover thresholds under Section 35 ARC are being raised simultaneously:

By raising the revenue thresholds, approximately 120 cases per year, representing a decrease of 13 to 14 percent, are expected to fall outside the scope of merger control.

Transaction value threshold: abolition of subsidiary application and forecast of significant domestic activity sufficient – Section 35(1) no 2 (b) ARC Draft

No subsidiary application:The transaction value threshold (> €400 million consideration value) has hitherto systematically ranked below the turnover thresholds. This meant that the transaction value threshold could not function as a means of circumventing the turnover thresholds. In so-called “mature markets”, where the target company’s turnover sufficiently reflects the market potential, according to the Higher Regional Court Düsseldorf the transaction value threshold did not apply. The draft bill now expressly clarifies that both triggering criteria (turnover thresholds and transaction value threshold) are to be treated as equal. 

Extension of the scope of application: The draft regulation provides that, in future, transactions will also fall within the scope of the transaction value threshold if, although the target company is not yet operating to a significant extent in Germany at the time of the transaction, it is highly likely to do so (usually within the next two years), for example, because market entry is planned or the company is set to significantly increase its user numbers in Germany. This is intended to cover, in particular, cases of so-called “killer acquisitions”, which have not previously been subject to the competition authorities’ scrutiny. Cases such as Microsoft/Inflection or Microsoft/Open AI should thus be more easily scrutinised in future. However, the precise requirements for such a forecast-based decision remain to be clarified.

New notification procedure for the transaction value threshold (“Phase 0”) – Section 39(1) sentence 2, (7) and (8) ARC Draft

For mergers that are subject to notification solely on the basis of the transaction value threshold, a streamlined, preliminary notification procedure is being introduced:

• Instead of a full notification, a simplified notification is initially sufficient, containing basic company details, a description of the activities in which horizontal or vertical relationships between the parties exist, and a statement of the strategic and economic background.
   
• The Federal Cartel Office (FCO) must decide within two weeks of receiving the full notification whether a formal notification can be waived.
   
• If the Office does not respond within the deadline, the merger is deemed to have been approved.

2. Digital merger control notifications become mandatory – Section 39(1) sentence 3 ARC Draft

From 1 January 2028, merger control notifications will only be admissible by electronic means, via De-Mail, a qualified electronic signature, a special electronic government mailbox or via a dedicated internet platform.

A transitional period is to apply until the end of 2027, during which written notifications (including by fax) will continue to be accepted.

3. For the first time: “procurement screening” by the FCO – Section 32h ARC Draft

One of the most significant new powers: under the new Section 32h ARC Draft, the FCO is to be granted the right to systematically analyse procurement data, irrespective of any suspicion, for indications of so-called bid-rigging.

To this end, Section 114(4)  ARC Draft is intended to require public contracting authorities to submit the tender prices of all bidders to the “Public Procurement” data service  within 30 days of every contract award exceeding the EU thresholds (from 1 January 2026 approximately EUR 5.4 million for construction works, and for supplies and services EUR 140,000 (upper/highest federal authorities)/ 216,000 (other public contracting authorities)), must, as a general rule, submit the tender prices of all bidders to the “Public Procurement” data service within 30 days. The storage of the data is limited to five years.

Germany is thus following the example of other Member States, such as Spain or Denmark, where the systematic analysis of procurement data is already practised today.

In addition, Section 114(5) ARC Draft is intended to enable contracting authorities and public procurement tribunals to pass on relevant procedural documentation to the competent competition authority in cases of suspected breaches of competition law.

4. Remedies against ministerial authorisation are being strengthened again  – Section 73(2) ARC Draft

The 9th ARC Amendment restricted third-party standing to bring actions against a ministerial authorisation: actions were only admissible if the third party’s subjective rights had been infringed. This restriction is to be reversed by the 12th ARC Amendment. In future, it will again be sufficient for a third party’s economic interests to be affected, as was the case prior to the 9th ARC Amendment. In this way, the exceptional nature of the instrument is to be brought more strongly to the fore once again.

5. Appeal without leave – Section 77 ARC Draft

Until now, an appeal to the Federal Court of Justice in administrative antitrust matters required leave to appeal from the Higher Regional Court of Düsseldorf. Experience has shown that the proceedings for an appeal against a refusal to grant leave to appeal took just as long as the actual appeal proceedings.

The Ref-E abolishes the leave requirement entirely: in future, appeals against decisions of the Higher Regional Courts will be heard without leave.

6. Extension of the scope of application for decisions pursuant to Section 32c (4) ARC Draft

Companies can apply to the FCO for a binding decision as to whether there were no grounds for intervention, but until now only for horizontal cooperation between competitors. By deleting the words “with competitors” in Section 32c(4) ARC Draft, this option is now to be extended to vertical agreements. This creates greater legal certainty, particularly for innovative cooperation models, data pools and new distribution structures.

7. Limited term of office for the President of the FCO – Section 51a ARC Draft

Under the new Section 51a ARC Draft, the term of office of the President of the FCO is limited to eight years. Reappointment is excluded. Germany is thus following the example of the vast majority of national competition authorities within the EU, where a term limit for the head of the authority already applies.

8. Procedural simplifications in competition law

Hearings and access to files – Sections 56, 56a, 56b ARC Draft

The existing “oral proceeding/trial” (mündliche Verhandlung) is to be replaced by a more flexible public oral hearing (öffentliche Anhörung) (Section 56a ARC Draft), which is designed to be less bureaucratic and more participatory. The new instrument is intended to address the need to supplement the written antitrust administrative procedure with a specific form of oral hearing. In proceedings under Section 32f(3) and (4) ARC (remedial measures following sector inquiries), it is generally mandatory. In other cases, it may be conducted ex officio or at the request of the parties involved.

In addition, the rights of access to files are reorganised in Section 56b ARC Draft. In particular, it is clarified that simple interveners have no legal right of access to files.

Service and electronic communication – Section 59(5) ARC Draft

In future, information orders may be served by ordinary email, provided that the undertaking has set up the relevant electronic access.

• The submission of electronic acknowledgements of receipt is simplified by reference to Section 173(3) of the Code of Civil Procedure (ZPO). The previous requirement for an acknowledgement of receipt by means of a qualified electronic signature or a PDF file to be completed is no longer necessary. A structured data record is now sufficient as the basis for electronic acknowledgements of receipt.
   
• These simplifications are extended to administrative fine proceedings (Section 82c ARC Draft) and enforcement proceedings (Section 86a(2) ARC Draft).

Publication requirements – Section 43(4) ARC Draft; Section 61(3) ARC Draft

The FCO will be required to publish its decisions in full and in a timely manner on its website in future, including in the area of merger control (Section 43(4) ARC) and for orders under Sections 19a, 30, 31b, 32–32f, 34 and 60 ARC (Section 61(3) ARC). However, the publication requirements do not apply to decisions imposing fines.

Fines proceedings – Section 82a ARC Draft

The ARC Draft provides for the simplification of communication channels between the competition authority, the public prosecutor’s office and the court. In future, the competition authority will send files directly to the competent court and, in appeal proceedings, directly to the Federal Public Prosecutor General, without the previous detour via the public prosecutor’s office. The competition authority will be placed on a completely equal legal footing with the public prosecutor’s office.

Participation in appeal proceedings – Section 63 ARC Draft

The provisions on party status in appeal and further appeal proceedings are to be revised for the sake of clarity in line with current case law on party status in appeal proceedings. A new provision allowing for the court to join a party to the proceedings is introduced, modelled on Section 65 VwGO (Section 63(1)(4) ARC Draft).

9. Supervision of abuse in the energy sector to be extended – Section 29 ARC Draft

The supervision of abuse in the energy sector under Section 29 ARC, which would originally have expired at the end of 2027, is to be extended by five years until 31 December 2032. This applies in particular to district heating, the basic supply of electricity and gas, and the heating electricity sector.

10. Fee adjustment after over 30 years – Section 62(2) sentence 2 ARC Draft

The fee caps for antitrust proceedings are being raised for the first time since 1989:

11. Outlook and next steps

The draft is still at the stage of a ministerial draft (as of 4 June 2026) and must still go through the parliamentary legislative process.

It therefore remains to be seen what changes will be made to the draft bill during the legislative process. The Federal Ministry of Finance, for example, proposes allowing the recovery of benefits (Section 34 ARC) in cases of breaches of the prohibition on cartels, regardless of fault.

We will continue to monitor the process and will keep you informed of any significant changes as the legislative process progresses.

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