論德國《限制競爭防止法》修正條文之平台監理與公平競爭維護

Discussing the Germany’s Regulation of“GWB Digitalization Act”on Online Platforms and the Maintenance of Fair Competition in the Digital Market

數位轉型已成為國際趨勢，加上新冠病毒疫情嚴峻，產業及社會大眾對線上數位平台及社群媒體之依賴更勝以往，因此造就數位市場大幅發展。而數位市場往往受到目前大型或超大線上數位平台或社群媒體之控制或壟斷。為保障國內數位市場公平運作，歐盟執委會及德國就大型或超大線上數位平台對本國數位產業的不正競爭威脅，均分別以立法或修法方式保護本國數位產業在市場的存續與公平競爭。為此，德國透過《限制競爭防止法》第10次修正條文，也就是所謂的「數位化法案」，防止大型及超大跨國線上數位平台對境內中、小型業者形成不正競爭，並降低數位市場被跨國數位平台壟斷，或數位產業對跨國平台業者產生高度依賴之風險。本文將以德國國會於2021年1月通過之《限制競爭防止法數位化修正條文》為立法例，研析德國面對跨國線上數位平台對境內中、小型數位產業之存續與發展造成危害，並對市場運作形成高度壟斷風險時，如何以符合數位經濟與資料治理需求之競爭法制進行規管，維持市場公平運作。同時並以各界意見，探討該法施行後可能出現之爭議。

Digital transformation has become a global trend and has led to a significant growth in the digital market. Nevertheless, the digital market is often controlled or monopolized by large or very large online digital platforms or social media. In order to protect the fair operation of the domestic digital market, the European Committee and Germany have adopted legislation or amended laws to protect the survival of the domestic digital industry and fair competition in the market from the threat of unfair competition by large or very large online digital platforms. To this end, Germany has amended the“GWB Digitalization Act”to prevent multinational online digital platforms from unfairly competing with domestic small and medium-sized businesses, and to reduce the risk of the digital market being monopolized or highly dependent on multinational digital platforms.
The newly added Article 19a deserves special attention. The most important changes include new regulations governing the supervision of mergers and acquisitions and provisions aimed at preventing the abuse of market power and influence by large-scale enterprises. Major digital platform operators will be prohibited from deliberately favoring their own services and products on their platforms or pre-installing or pre-configuring only their own digital services on various devices. Moreover, these transnational platform operators may not block competitors from placing ads for digital services and products on their platforms or stop their customers from accessing or browsing similar products or services provided by online digital platforms run by other enterprises. Under clearly-defined circumstances, online digital platforms are also prohibited from bundling services or products with other services provided by them. The new law further bans social media from monopolizing the digital market by adopting malicious business strategies that aim to impede free market competition. Acts by social media or digital platforms with significant market power that involve refusal of access or connection to their databases by competitors are construed by the Bundeskartellamt (Federal Cartel Office) as anti-competitive behavior based on the abuse of market power. Taking the“GWB Digitalization Act”passed by the German Bundestag in January 2021 as an example of legislation, this article will explore the way Germany regulates the competition law when the multinational online digital platform hinders the development of the domestic digital industry and creates the risk of monopolizing the market, as well as the controversies that may arise after the implementation of the law.