According to the German Ministry of Economics, the “German Gatekeeper Rule”[1] has proven to be an effective means of ensuring fair competition on digital markets. In its Evaluation, published earlier this month,[2] the Ministry praised the Rule for improving market conditions in the technology sector and promoting innovation and competition since it came into force four years ago. Describing it as a “valuable supplement” to the European Union’s set of gatekeeper rules in the Digital Markets Act (DMA), which has since been introduced, the Evaluation sees no need for further adjustments or harmonization. The requirement for an evaluation after four years was enshrined in the 2021 legislation, which mandated that the Ministry of Economics take into account relevant developments at the European level in its assessment of the Rule.[3]
Background
In January 2021, almost two years before the DMA came into force in the EU, the German legislator introduced Section 19a of the Act Against Restraints of Competition (ARC) in response to a perceived need to address the risk of concentration on digital markets due to network effects and privileged access to data. Regarded by some as a blueprint for the DMA, the Rule enables the German Federal Cartel Office (FCO) to target big tech companies in a two-step process, similar to the DMA: firstly, by designating “companies of paramount significance for competition across markets” as subject to the Rule; and secondly, by prohibiting them from engaging in practices that are presumed to damage competition. The conditions for the designation decision resemble those of the DMA. Unlike the DMA, however, the German Gatekeeper Rule applies not only to designated “core platform services”, but also allows the FCO to intervene in markets in which the companies are not (yet) dominant. This represents a significant departure from previous abuse control, extending the scope both in terms of timeline and risk by weakening the thresholds for intervention. In addition, the burden of proof to refute potential concerns lies with the gatekeeper.
Results of the Evaluation
The Evaluation concludes that the German Gatekeeper Rule has fully achieved its legislative objectives. Its scope has been limited to a small group of companies,[4] and enabled the FCO to intervene efficiently and in a timely manner, for example by addressing alleged bundling concerns relating to Meta’s “Quest” AR glasses,[5] Google Automotive Services, and services on the Google Maps Platform.[6]
According to the Evaluation, the introduction of the DMA, which largely targets the same set of players and conduct, has not made the German Gatekeeper Rule redundant.
In line with the intent of the EU legislator, national (as well as EU) competition law remains applicable alongside the DMA, which pursues a complementary, yet different, objective.[7] As a sector-specific manifestation of abuse control, the German Gatekeeper Rule forms part of national competition law. Even without the new Rule, the Ministry considers that the FCO, like the EC, could target most of the anti-competitive behaviour in question. However, the length of regular competition proceedings may render them ineffective, as affected markets may tip in the meantime. Such risks are said to exist, in particular, in fast-evolving digital markets. The preventive nature of the German Gatekeeper Rule, particularly its “clearly formulated examples” and “the intention of the German legislator, clearly evident from the explanatory memorandum to the law”, may encourage gatekeepers to adapt their behaviour proactively.
Due to its “open-ended design”, which requires further specification, the German Gatekeeper Rule is a valuable supplement to the rigid, directly applicable rules of the DMA. The Ministry concludes in its Evaluation that the flexibility of the German Gatekeeper Rule to target novel and “currently still unknown” conduct in relation to rapid technological developments, such as AI, will become even more important over time.
Implications
Based on the Ministry’s positive evaluation, no significant amendments to the German Gatekeeper Rule are anticipated in the near future. However, by failing to address the valid concerns raised,[8] the Evaluation misses an important opportunity to reduce bureaucracy, facilitate innovation and improve EU-wide harmonization, all of which would benefit EU users.
While the Rule’s broad scope of application and open-ended design may provide the FCO with more flexibility to address novel harms, for companies subject to the Rule this means less legal certainty and greater risk when introducing new services in Germany, even in markets where they are not dominant. The burden of proof to rebut allegations of anticompetitive conduct may cause affected companies to refrain from introducing new services that could be targeted by the Rule, rather than risking close scrutiny in a year-long proceedings with the FCO. Contrary to the Ministry’s finding that the German Gatekeeper Rule promotes innovation and helps gatekeepers adapt their conduct proactively, the Rule may thus result in quite the opposite: hampering innovation and putting affected users at a significant disadvantage. The Evaluation remains silent on this risk.
While the Evaluation suggests that the scope of application and “raison d’être” of the German Gatekeeper Rule lies in its ability to target novel and previously unknown conduct, it does not address why such conduct should be targeted at a national rather than EU level. The Evaluation refers to “rapid technological developments” in this regard, particularly AI. However, the EC has only recently opened investigations into AI-related conduct based on its competition law regime.[9] This calls into question the need for a national Rule targeting such conduct in parallel. From both a practical and legal point of view, it seems preferable to assess such groundbreaking and far-reaching developments under EU law to ensure harmonised outcomes across the EU.
These two aspects demonstrate that a more critical examination of the German Gatekeeper Rule is warranted. In particular:
- The conditions for initiating proceedings under the German Gatekeeper Rule should be clarified, in particular with regard to the types of conduct targeted by the Rule.
- The Rule should be applied more cautiously and limited to cases where there is a genuine risk of, and practical evidence of, market tipping.
- The imposition of the burden of proof on affected companies to justify their conduct as not being anticompetitive should be reconsidered, particularly in cases involving pipeline services and in the early stages of market development.
- The relationship between the German Gatekeeper Rule and the DMA should be further clarified, and parallel investigations into similar conduct or services at the national and EU level should be avoided.
[1] Section 19a of the German Act Against Restraints of Competition.
[2] See here for the original version (available only in German): https://www.bundeswirtschaftsministerium.de/Redaktion/DE/Downloads/E/20260107-evaluation-19a-gwb.pdf?__blob=publicationFile&v=4.
[3] See Section 19 para. 4 ARC.
[4] The FCO has designated so far only Alphabet, Amazon, Apple, Meta and Microsoft under Section 19a ARC. Only two addressees had appealed the FCO’s decision (Amazon and Apple), but the FCO’s decision was upheld in both cases by the German Federal Court of Justice.
[5] See, FCO press release of November 23, 2022: https://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilungen/2022/23_11_2022_Facebook_Oculus.html.
[6] See, FCO press release of April 9, 2025: https://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilungen/2025/04_09_2025_GAS_GMP.html. The FCO’s investigations to date also included Google’s use of customer data, its publisher service “Google News Showcase”, Apple’s App Tracking Transparency Framework as well as Amazon’s Brandgating and price control mechanisms. The proceedings against Apple and Amazon are ongoing.
[7] See Recital 11 DMA; cf. Art. 1 para. 6 lit a) and b) DMA.
[8] Cf., for example, Amazon’s statement of 22 December 2025.
[9] European Commission, press release of 4 December 2025 and press release of 9 December 2025. The investigations are part of the EC’s ongoing monitoring of AI markets in the EEA.