Sector Inquiries and the 11th GWB Amendment

Sector inquiries after the 11th GWB amendment: the short answer

Sector inquiries used to be a research tool. The Bundeskartellamt studied a market, published a report and made recommendations to the legislator. The 11th amendment to the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB), in force since November 2023, changed that. Once the Federal Cartel Office (FCO) has published a final report, § 32f GWB now allows it to impose behavioural or structural remedies on companies, to require notification of future mergers in the sector and, as a last resort, to order divestitures, without having to prove any infringement of competition law.

The same amendment strengthened disgorgement of economic benefits under § 34 GWB. In 2026, a further legislative package on fuel markets streamlined the § 32f procedure into a single decision. Companies whose sector is under review should therefore treat information requests in sector inquiries as the first stage of potentially intrusive proceedings, not as a market survey.

What sector inquiries are and how they run

Under § 32e(1) GWB, the FCO and the state competition authorities may examine a sector of the economy, or a type of agreement across sectors, where circumstances suggest that competition in Germany may be restricted or distorted. They can request information from companies and associations, including details of all agreements and concerted practices (§ 32e(2) GWB). The FCO should complete an inquiry within 18 months of its launch (§ 32e(3) GWB) and publishes a report on its findings, which may include policy recommendations to the Federal Government (§ 32e(4) GWB).

Formal investigative powers apply: requests for information are binding administrative orders, deadlines are short and incomplete or incorrect answers can be fined. The FCO can also run consumer-protection sector inquiries where it suspects substantial, lasting or repeated breaches of consumer law affecting many consumers (§ 32e(6) GWB), but the new remedy powers do not apply to those inquiries.

From report to legislation: the fuel example

The FCO's sector inquiry into refineries and fuel wholesale, with a final report published in February 2025, is the clearest example of a report feeding directly into policy. The 2026 fuel package expressly relied on the report's findings about the strong position of the leading suppliers, insufficient price competition at refinery and wholesale level and the "rocket and feather" pattern of retail prices, which rise quickly when crude costs increase but fall slowly when they decrease.

New remedies after sector inquiries under § 32f GWB

Section 32f GWB gives the FCO three additional instruments once it has published a final report on sector inquiries under § 32e(1) GWB. They exist alongside, not instead of, its ordinary powers against cartels and abuse of dominance.

Orders under § 32f(2) to (4) GWB should be issued within 18 months of the publication of the final report (§ 32f(7) GWB). In regulated network sectors (rail, post, telecommunications and regulated energy networks), remedies require the agreement of the Federal Network Agency (§ 32f(8) GWB).

What counts as a disturbance of competition

The statute lists typical cases: unilateral supply or demand power, barriers to market entry, exit, capacity or switching, uniform or coordinated behaviour, and foreclosure of inputs or customers through vertical relationships (§ 32f(5) GWB). The FCO must consider factors such as market structure, concentration, links between companies, prices and quality, transparency, contracts, market dynamics and efficiencies. A disturbance is "continuing" if it has persisted or recurred over three years and there are no indications that it is likely to disappear within two years.

The 2026 streamlining of the procedure

As originally enacted, § 32f(3) GWB worked in two stages: the FCO first had to find a significant and continuing disturbance of competition, and only in a second step could it impose remedies. It also had to show that each addressee had contributed significantly to the disturbance through its conduct. The fuel measures package introduced by the governing coalition in March 2026 (Bundestag printed paper 21/4744) replaced this with a single-stage procedure: one order covers both the finding of a disturbance and the remedies, and only that order can be challenged in court. The requirement of a substantial contribution by each addressee was removed.

The consolidated text of § 32f GWB as published on gesetze-im-internet.de in November 2026 reflects the new single-sentence § 32f(3) and a new § 32f(10), which requires the economics ministry to report on the experience with the new rule five years after 1 April 2026. The same package introduced § 29a GWB, which reverses the burden of proof on costs for powerful fuel suppliers in abuse proceedings.

Responding to sector inquiries: a practical checklist

The quality of a company's early submissions often determines whether it later becomes an addressee of remedies. The following steps have proved useful in practice.

1. Triage the request. Identify which questions are mandatory, which deadlines can realistically be met and where an extension should be requested early, with reasons.
2. Collect data once. Set up a single data team so that turnover, capacity, price and customer data are consistent across this inquiry, merger filings and other authority contacts.
3. Check documents for tone. Internal strategy papers and emails may be requested. Make sure they are read in context and that business rationale is explained in the response.
4. Mark business secrets. Identify confidential information precisely and provide non-confidential versions, because the final report is published.
5. Present efficiencies. The FCO must consider cost savings and innovation that benefit consumers. Evidence of these is best submitted early, not only once remedies are proposed.
6. Monitor the report. After publication, the 18-month window under § 32f(7) GWB starts. Prepare scenarios for possible remedies and for a merger notification obligation affecting the M&A pipeline.

Disgorgement of profits under § 34 GWB

The 11th amendment also made the disgorgement of economic benefits (Vorteilsabschöpfung) a practical tool. Where a company has intentionally or negligently infringed German or EU competition rules, the competition authority may order it to pay an amount corresponding to the economic benefit obtained (§ 34(1) GWB). Disgorgement is excluded to the extent the benefit has already been absorbed by damages payments, fines, confiscation or reimbursement.

• Presumptions. An infringement is presumed to have caused an economic benefit, and the benefit is presumed to amount to at least 1 per cent of domestic turnover with the products or services connected with the infringement (§ 34(4) GWB).
• Rebuttal. The company can rebut the minimum presumption only by proving that neither the legal entity involved nor the wider undertaking (worldwide, as an economic unit) made a corresponding profit in the disgorgement period.
• Cap and periods. The amount may not exceed 10 per cent of total turnover in the preceding business year; disgorgement can be ordered within seven years of the end of the infringement and covers at most five years.

Before the 11th amendment, disgorgement required proof of the precise benefit, which made the instrument difficult to use, and the FCO rarely applied it. The new presumptions shift the burden to the company and make disgorgement a realistic supplement to fines, particularly where fines are limited by the statute of limitations or where the infringement was negligent rather than intentional.

Disgorgement interacts with private enforcement. Because damages payments reduce or eliminate the benefit, companies facing both follow-on claims and a disgorgement order need a coordinated strategy on quantification and timing.

Early practice and outlook for sector inquiries

In the first years after the 11th amendment, the FCO used the new instruments sparingly. Its published sector inquiry reports continue to contain detailed market analysis and policy recommendations, and the fuel report became the political basis for the 2026 package. Business associations have criticised the tightening of § 32f GWB as a risk to Germany as a place to invest, arguing that structural intervention without an infringement weakens legal certainty. The Federal Government, by contrast, presents the single-stage procedure as a contribution to faster, less bureaucratic enforcement.

For companies, three trends matter. First, sector inquiries are likely to be launched in concentrated, consumer-facing markets and in markets with vertical integration. Second, the merger notification obligation under § 32f(2) GWB can capture small acquisitions far below the general thresholds in § 35 GWB. Third, judicial review of § 32f orders will shape the limits of the instrument, and the courts have yet to define in detail how intensively they will review the FCO's economic assessment.

Illustration: a hypothetical regional building-materials producer receives a questionnaire in a sector inquiry on construction aggregates. Even if it has never been accused of an infringement, the inquiry could end with an obligation to notify all acquisitions of quarries above EUR 1 million German turnover for three years, or with obligations on supply terms to downstream customers.

How TRW & Co helps in sector inquiries

We act for companies from the first information request onwards. We help clients understand what the FCO is asking and why, prepare complete and consistent responses, protect business secrets in the file and present an economic narrative that addresses the factors in § 32f(5) GWB. Where remedies or a merger notification obligation are under consideration, we engage with the authority on proportionality and alternatives and prepare appeals where necessary. We also advise on disgorgement exposure under § 34 GWB. This work connects with our merger control and cartel investigations practice and our antitrust and foreign trade group. See also our insights on § 19a GWB and digital gatekeepers and merger control filings at the Bundeskartellamt. To discuss a pending inquiry, contact us.