If companies act in breach of EU competition law, they are rightly sanctioned. However, procedures under EU competition law are often non-transparent and their economic policy consequences can be difficult to foresee. The level of fines in cartel cases is disproportionately high, posing an existential threat to some companies. This often creates pressure to enter into settlement agreements. Discussions are even taking place about introducing criminal sanctions for individual company decision-makers. All national and international cartel procedures should be examined in terms of the discretion and decision-making powers of the authorities. Authorities act as investigators, prosecutors, and initially as judges. From the perspective of businesses, it is essential to safeguard defence rights unconditionally and to make them fully reviewable by the courts. This also applies to negotiations on the termination of proceedings: competition law must not become a political instrument of administration. Decisions, including those made during investigations, should be fully reviewable by the courts.

EU decisions regarding sanctions under competition law are binding for courts of the member states and serve as a basis for private claims for damages. The EU therefore bears a particularly high responsibility for the legality of the procedures, which bring a multitude of consequences even before judicial review. The private enforcement of competition law is increasingly strengthened, for instance, by allowing damages to be presumed rather than proven. This creates significant pressure on affected companies to agree to costly settlements solely to achieve legal peace.

Additional pressure arises from the plaintiff’s ability to choose the most favorable venue for damages claims under competition law (so-called "Forum Shopping"), such as courts offering the highest damage awards, plaintiff-friendly procedural rules (e.g., mandatory document disclosure), many evidentiary facilitations, or the possibility of third-party litigation financing without national law transparency requirements. These rulings are enforceable EU-wide. However, the competition among court venues must not be carried out at the expense of companies. Accountability and damages for actual legal violations are, of course, a given for the economy. But the need is to find rules ensuring sufficient defense opportunities for companies. Private claims for damages should solely serve the purpose of compensation.

Under the framework of the Green Deal, collaborations between businesses – including at a horizontal level – are particularly significant, as many innovations aimed at greater sustainability require cooperation in terms of expertise, financial strength, and competitiveness. Without these efforts, resources might not be utilized sustainably. Therefore, it should be ensured that businesses do not refrain from such collaborations due to legal uncertainties, such as the risk of sanctions under competition law. To achieve this, companies need legal certainty, for instance, through communications from the Commission or the German Chamber of Commerce and Industry (IHK) indicating that the planned cooperation raises no competition law concerns.

Through the eleventh amendment to the German Act against Restraints of Competition (11th GWB Amendment), the Federal Cartel Office received very far-reaching intervention tools in 2023. These tools allow the Office to act against "disruptions to competition" following sector investigations, but these disruptions are not clearly defined. Structural remedies can now be directed at companies that are not guilty of misconduct and have acted consistently lawfully. Possible government measures—such as prescribing concrete pricing and contract arrangements, up to the breakup of companies—can severely interfere with entrepreneurial freedom. There are significant doubts about the constitutionality and compliance of the law with European law. The legislative decision to allow a government authority, rather than lawmakers, to intervene in the entrepreneurial freedom of law-abiding companies should be reassessed.

Under no circumstances should these shortcomings in the German GWB be transferred to the EU level—especially because there is no experience or evaluation of the newly effective German regulation. The EU had recently decided against a comparable New Competition Tool (NCT) and instead adopted the Digital Markets Act (DMA). This decision against the New Competition Tool should not be reversed without a factual basis and proven actual necessity, even for individual sectors.

Successful steps towards liberalisation have been taken in recent decades, particularly in the fields of energy supply, telecommunications, and waste management. However, re-municipalisation is repeatedly discussed at the regional level. It must be taken into account that tax law can cause distortions of competition to the detriment of private companies if public companies, unlike private competitors, can offer services partly exempt from turnover tax and outside the scope of cartel review by the German Federal Cartel Office.

Private companies can often also offer public services. The key is that public services are provided in the best possible way. In this context, besides specific mandates, factors such as comprehensive coverage, competition regarding costs, quality, and sustainable provision play an important role. If public and private companies operate in the same market, competition should be fair, and all companies should be treated equally in terms of tax law and cartel law.

Procurement law is often perceived by both public contracting authorities and businesses as cumbersome, bureaucratic, and legally fragmented. The number of bidders in procurement procedures is dramatically decreasing. Discussions about simplification and acceleration often exclusively propose raising the thresholds as a solution. From the perspective of the economy, this approach is too narrow and partly contradicts the fundamental objectives of procurement law, which are: economical procurement under the framework conditions of transparency, competition, and corruption prevention. More competition through more bids can only be achieved if the procurement procedures are made more bidder-friendly overall. The most economical offer does not necessarily have to be the cheapest one.

A competition-promoting design starts with targeted standardisation at different legal levels and more professionalism and expertise among public contracting authorities. Almost every federal state has its regulations on which criteria, besides price and quality, must be considered in procurement. In addition, the limits from which procurement is public, limited, or obligatory vary.

Clear, comprehensible rules and procedures coordinated among the federal states help businesses and ultimately the public contracting authorities.

The competition among businesses would be strengthened by a nationwide, mandatory publication medium for public contracts – including below the EU threshold. Internationally, reciprocity should be pursued so that German companies are granted the same opportunities in foreign tenders as foreign companies are in German tenders.

Public procurement has been increasingly linked to politically desirable practices of the contracting entities, be it through additional legal obligations related to social, ecological aspects, or through compliance with collective agreements and human rights. Already, the aim of so-called "strategic procurement" (including sustainability, innovation, human rights) results in tender requirements often being made so extensive and detailed that they are practically unattainable for many companies. This is particularly true for small and medium-sized enterprises. Legislative mandates are unnecessary, as the consideration of such aspects is already possible on the basis of the existing legal framework.

Strategic requirements in public contracts should not be made mandatory. In the view of the majority of businesses, they are only compatible with cost-efficiency and competition if they are contract-related and if they can also be monitored by the public client. Neither the bidding company nor the individual awarding authority will generally be able to sufficiently ensure compliance with extensive conditions regarding the production process and the supply chain in global value chains. Consequently, such extensive conditions should not be required in tenders. Moreover, according to the EU's "Think small first" principle, strategic objectives must not practically exclude SMEs from many tender procedures.

Sustainable products are intended to be the standard within the EU, aiming to prevent politically undesirable product designs. The economy believes it is essential to better inform consumers and customers about the sustainability of products, protecting them from unreliable or false environmental claims. Transparency and truth regarding sustainable products are fundamental values for companies, and suitable regulations exist in most cases. Nevertheless, the EU has introduced excessively detailed regulations. Requirements for mandatory information obligations should not be extended inappropriately, especially when the benefits of specific information for consumers are minor and confusing, yet the burden on companies is significant. Moreover, the proven standard for impermissible misleading practices should not be unilaterally altered to the disadvantage of companies, even for sustainable products.

An over-regulation of advertising with environmental claims is imminent through outright bans and mandatory pre-approval of advertising claims by an authority. Such outright bans should be assessed for necessity. The economic sector overwhelmingly rejects pre-approval processes for such advertising with environmental claims. It is vital to consider the effort-benefit ratio and proportionality. Advertising possibilities with green claims should remain accessible for SMEs and not fall victim to financially burdensome or prohibitive approval procedures. Overwhelming companies will anticipateably lead to ‘greenhushing’—completely refraining from sustainability advertising. If sustainable products and services can no longer be promoted, this will also impact innovation in this field, thereby undermining the desired effect.

Tobacco, alcohol or "unhealthy" food: Discussions often quickly lead to calls for advertising bans. However, as long as products are not legally prohibited or there is no empirical evidence of a causal relationship between advertising and damages, such as health issues, entrepreneurs should be able to advertise these legal products lawfully, according to the predominant opinion. The state should adhere to the principle of a responsible and informed consumer and once again integrate it more strongly into its political evaluations.

For vulnerable groups, it is indeed essential to take targeted and effective measures, but these must not lead to disproportionate harm to companies that go beyond the original protective goal. These principles also apply to the so-called "nudging," as legal entrepreneurial behavior should not indirectly be treated and controlled by the state as illegitimate. As far as so-called "dark patterns," which refer to designs intended to mislead users into actions contrary to their interests, are to be regulated by law, it should be examined whether such regulation is necessary and to what extent. In most cases, such manipulative designs are already covered by existing regulations.

In many areas of commercial law in Germany, private enforcement has proven efficient and successful. However, concerning the enforcement of consumer protection law under private law, such as the Act Against Unfair Competition or the Injunctions Act, there is increasing discussion regarding additional governmental enforcement mechanisms. This debate spans diverse areas of civil law, including contract design (Late Payment Directive).

For many years, the EU Commission has taken steps in various consumer protection regulations to mandate details of sanctions in the form of administrative fines across Europe. For the internal market, it is sufficient that the law is enforced and that there are effective sanctions, which the Commission primarily lacks in contractual infringement procedures (see chapter "Internal Market").

Private enforcement through trade associations, German Chamber of Commerce and Industry (IHKs), consumer protection associations, and competitors, especially in the field of competition law (UWG), is effective, swift, and cost-efficient. There are no visible shortcomings that a consumer protection authority could better handle, either cross-border or nationally. Instead, establishing such an authority might create another bottleneck with delimitation issues and political priorities, potentially leading to slower sanctioning of competition violations than currently, to the disadvantage of competitors as well.