This could in the future especially affect the food trade and the digital economy. This new possibility for market design by an agency is just one of the aspects opposed by the German Chamber of Commerce and Industry (DIHK) together with eight other business associations: Federation of German Industries (BDI), Federation of Wholesale, Foreign Trade and Services (BGA), Bitkom, German Raiffeisen Association (DRV), German Retail Federation (HDE), Association of the Chemical Industry – VCI, Association of Municipal Companies (VKU), and SME Association – ZGV.

The associations’ short position in full

"The Federal Government adopted on March 17, 2026, a 'Fuel Action Package' (draft of a law for introducing a law for the adjustment of fuel prices and amending the Act against Restraints of Competition), currently in the parliamentary process (Bundestag Printed Paper 21/4744) (only available in German).

The draft law is expected to be passed by the Bundestag and Bundesrat later this week. The draft law not only includes specific regulations for the fuel markets, but also proposes changes to antitrust provisions that are of great importance to the entire economy, especially the planned tightening and expansion of Section 32 f GWB (Article 2 No. 3 of the draft).

The German economy’s associations already critically view the existing possibilities of the Federal Cartel Office to define entrepreneurial scopes of action with Section 32 f GWB. Such a level of intervention in the private autonomy is actually reserved for the legislator. Therefore, even the current regulation is constitutionally questionable, as outlined by Prof. Dr. Martin Nettesheim in an expert opinion in 2023. Particularly problematic is the fact that affected companies can hardly foresee or avoid the issuance of such official behavior requirements up to uncompensated deconcentration orders, as these measures are not linked to illegal behavior and associated legal violations.

The approach associated with Section 32 f GWB, subjecting the economy to dirigiste structural and, ultimately, politically-administrative reorganization of markets and companies by the Federal Cartel Office ('Market by Design'), is strongly opposed by the participating associations. The regulation of entrepreneurial action scopes must – if at all – necessarily remain the task of the democratically legitimized legislator, and cannot be delegated to an agency. It is not the role of the Federal Cartel Office to restructure a market, even in situations where, due to certain circumstances beyond the companies’ control, competition in this market might not be economically optimal.

Hence, the participating associations of the German economy believe that Section 32 f GWB should be deleted in its entirety in the next GWB amendment. Under no circumstances should the regulation – as now planned with the Fuel Action Package – be tightened in a fast-track procedure.

The planned changes in Article 2 No. 3 of the draft law are highly problematic for the following reasons:

• The reduced legal protection options for affected companies hinder market entry and harm market contestability
  
  Currently, the Federal Cartel Office must first, after a sector inquiry, identify a significant and ongoing disruption to competition. This allows the addressed companies an opportunity to have the market disruption reviewed by the courts before further measures by the Federal Cartel Office can be implemented.
  
  Under the proposed changes to Section 32 f (3) GWB, this first step will no longer be required. Thus, the legal protection opportunity at this first stage also disappears. In the future, the Federal Cartel Office would be able to determine the market disruption within a single order and simultaneously order the remedial measure. Companies could then only seek legal protection once against this single comprehensive order. This clearly increases insecurity among market participants as they must immediately expect extensive interventions into their entrepreneurial freedom.
  
  There is a risk that due to this lack of legal certainty, innovations and investments may be scaled back in advance when the sector inquiry is initiated, hindering job creation or expansion. Competition and growth will likely be significantly harmed. New market participants, in particular, carefully calculate whether a market entry is viable. If they have to expect severe interventions and low legal protection without any behavior violating the law, necessary investments might be postponed or abandoned, making market entry unattractive. This reduces the number of potential competitors, weakening the contestability of the market.
  
  Additionally, retroactive application is planned, so that Section 32 f GWB could also apply to already initiated or completed sector inquiries. As a result, companies would lose the previously provided opportunity to judicially review the findings of a market disruption and would have to expect far-reaching remedial measures immediately. This raises serious constitutional questions regarding ongoing proceedings’ legal certainty.
   
• The scope of regulation disproportionately broadens to include companies that have not contributed to market disruptions
  
  Under the current legal situation, remedial measures can only be addressed to companies that have made a significant contribution to the competition disruption through their behavior and market significance. The proposed changes in paragraph 3 eliminate this prerequisite. Consequently, companies could face interventions regardless of their behavior or size, prompting them to consider this possibility during their operations.
  
  In effect, initiating a sector inquiry would not only create uncertainty among a small group of companies that are addressed by the Federal Cartel Office under current law but would affect virtually all companies in the market affected by the sector inquiry regardless of their behavior and market position. This massively expands the group of companies experiencing uncertainty and amplifies the associated ripple effects. The aforementioned harm to growth and prosperity will only increase further.
  

Thus, it is imperative to discuss any potential intensifications of Section 32 f GWB – if at all – through a thorough process involving key stakeholders and independent of the current issue of rising fuel prices. While high fuel prices prompted this law change, whether Section 32 f GWB is even suitable for influencing such price movements is highly doubtful: The regulation does not intervene in pricing, addresses no misconduct by individual companies, does not target high prices, and does not prevent price spikes. Given Section 32 f GWB’s substantial regulatory impact, an extensive discussion on scope, purpose, and proportionality with all relevant stakeholders is indispensable. Hasty decisions are unacceptable in this sensitive area.

Germany's economic associations, therefore, appeal to the legislator to completely remove Article 2 No. 3 on Section 32 f GWB from the present Fuel Action Package."

Download

The paper of the associations is also available for download in a non-accessible PDF version:

Short Position of the German Economy on Tightening § 32 f GWB (only available in German) (PDF, 307 KB)