Interim Cease-and-Desist Powers of the Bundeskartellamt

1. Introduction

The Bundeskartellamt, Germany’s Federal Cartel Office, possesses an important power to intervene before the final determination of a competition-law infringement. This power is principally contained in Section 32a of the Gesetz gegen Wettbewerbsbeschränkungen (GWB), the German Act Against Restraints of Competition.

Section 32a permits the competition authority to impose interim measures where an infringement is more likely than not to exist and immediate intervention is necessary to protect competition or prevent imminent serious harm to another undertaking. The provision is therefore the German equivalent of a provisional cease-and-desist mechanism. (Gesetze im Internet)

The modern version of Section 32a was strengthened by the 10th GWB Amendment/Digitalisation Act of 2021, which deliberately lowered the threshold for interim intervention and was intended to enable the Bundeskartellamt to act more quickly in markets vulnerable to competitive harm. (Bundeskartellamt)

Importantly, an interim order is not a final finding of infringement. Its function is preventive: it preserves competitive conditions while the substantive investigation continues.

2. Statutory Foundation: Section 32a GWB

Section 32a(1) provides, in substance, that the competition authority may act ex officio where:

an infringement within the meaning of Section 32(1) is more likely than not;

the interim measure is necessary to protect competition, or there is an imminent threat of serious harm to another undertaking; and

the respondent does not establish an unfair hardship that is not justified by overriding public interests.

The order must be temporary. Section 32a(2) provides that it must be time-limited, although the period may be extended, with the total period generally not exceeding one year. (Gesetze im Internet)

Thus, the statutory test can be expressed as:

Probable infringement + urgency/competitive necessity + proportionality + temporary duration.

3. Why Interim Cease-and-Desist Powers Are Important

Ordinary competition enforcement can take considerable time.

A digital platform, dominant undertaking, distributor, infrastructure operator or other powerful undertaking may therefore be able to continue the allegedly anticompetitive conduct throughout the investigation.

By the time the final infringement decision is adopted:

competitors may have exited;

customers may have migrated;

network effects may have become entrenched;

data advantages may have become irreversible;

suppliers may have become dependent;

innovation may have been suppressed; and

restoring competition may become extremely difficult.

Section 32a addresses this problem by allowing the Bundeskartellamt to freeze or modify the conduct before irreversible competitive damage occurs.

4. Interim Measure Versus Final Cease-and-Desist Order

A critical distinction exists between Section 32 and Section 32a GWB.

Therefore, Section 32a is not simply a faster version of Section 32. It has a different procedural purpose.

5. The 2021 Reform and Lower Evidentiary Threshold

Before the 2021 reform, German law referred to situations involving urgency and the danger of serious, irreparable harm to competition.

The 2021 amendment replaced this formulation with a more flexible test based on the predominant probability of an infringement and the necessity of the measure to protect competition or prevent imminent serious harm to another undertaking. (Haufe.de News und Fachwissen)

This change is particularly important for:

digital markets;

platform ecosystems;

data-driven markets;

rapidly changing technological markets;

algorithmic pricing;

access to digital infrastructure; and

markets characterised by strong network effects.

The legislature therefore sought to permit intervention before the damage became irreversible.

6. Elements of the Section 32a Test

A. Predominant Probability of an Infringement

The Bundeskartellamt does not have to establish the infringement with the same finality required for a final Section 32 decision.

It must nevertheless demonstrate that an infringement is more likely than not.

This is stronger than mere suspicion.

The authority therefore needs a sufficiently developed evidentiary record concerning:

market power;

the relevant conduct;

competitive effects;

causal connection;

applicable competition-law provisions; and

probability of infringement.

This creates an intermediate evidentiary threshold between an investigative suspicion and a final infringement finding.

B. Protection of Competition

The first major justification is the protection of competition itself.

This can be relevant where continuing conduct could:

eliminate competitors;

foreclose market access;

undermine interoperability;

reinforce network effects;

facilitate exclusionary conduct;

distort procurement;

cause market foreclosure; or

make subsequent restoration of competition difficult.

The emphasis is therefore not simply on compensating a particular injured undertaking.

The broader concern is the preservation of the competitive process.

7. Imminent Serious Harm to Another Undertaking

Section 32a also permits intervention where there is an imminent threat of serious harm to another undertaking.

This can be especially significant where a smaller undertaking is economically dependent upon a dominant firm.

Examples include:

termination of access to essential infrastructure;

exclusion from a platform;

discriminatory access conditions;

sudden withdrawal of an essential input;

discriminatory interoperability restrictions;

exclusion from a digital marketplace; or

technologically irreversible foreclosure.

The provision therefore has both a market-protection function and an undertaking-protection function.

8. Proportionality

Because an interim order interferes with an undertaking's ongoing commercial conduct before final adjudication, proportionality is crucial.

The Bundeskartellamt must consider:

Suitability

Will the measure actually prevent or reduce the threatened harm?

Necessity

Is there a less restrictive measure capable of achieving the same objective?

Balancing

Do the benefits to competition outweigh the burden imposed on the undertaking?

Temporariness

How long must the measure remain operative?

This is particularly important because an incorrectly imposed interim order can itself distort competition.

9. The One-Year Limitation

Section 32a(2) expressly requires an interim order to be time-limited.

The period may be extended, but the provision states that the total duration should not exceed one year. (Gesetze im Internet)

This reflects the temporary nature of the power.

The Bundeskartellamt cannot use Section 32a as a substitute for completing the substantive investigation and issuing a final decision.

10. Relationship With Section 19a GWB

Section 19a GWB is particularly important for large digital companies.

It permits the Bundeskartellamt to impose enhanced abuse control on undertakings of paramount significance for competition across markets.

The authority has applied this framework to companies including:

Meta;

Alphabet/Google;

Amazon;

Apple; and

Microsoft.

The Section 19a framework allows the authority to prohibit specified anticompetitive practices at an earlier stage, while Section 32a can provide a temporary protective mechanism where the conditions for interim intervention are satisfied. (Bundeskartellamt)

This combination is particularly important in platform markets.

11. Case Law

1. BGH — EDEKA/Kaiser’s Tengelmann I, KVR 57/16 (14 November 2017)

This is one of the most important decisions concerning interim measures in German merger control.

The case concerned EDEKA's proposed acquisition of Kaiser’s Tengelmann. The Bundeskartellamt had issued interim measures concerning implementation of parts of the transaction.

The Federal Court of Justice examined the relationship between the merger-control standstill obligation and interim intervention.

Importance

The case demonstrates that an interim measure requires more than simply showing that a competition problem might ultimately exist.

There must be a genuine need for immediate intervention.

The decision is particularly significant because it emphasises that the authority must connect the interim order to concrete risks arising before the final decision.

2. BGH — EDEKA/Kaiser’s Tengelmann II, KVR 64/17 (17 July 2018)

The subsequent BGH decision provides an even more important qualification.

The Bundeskartellamt had relied partly on Section 32a in imposing interim orders.

The Court addressed the procedural and substantive limitations on using Section 32a in this context. It confirmed that the authority could not simply invoke Section 32a without the necessary connection to a substantive infringement proceeding.

The Court ultimately found that the Section 32a basis was legally problematic because the necessary principal proceeding concerning an infringement under Section 32 had not been properly established. (Open Legal Data)

Principle

Section 32a is an ancillary preventive power; it cannot become an autonomous substitute for the substantive infringement proceeding.

This is one of the most important safeguards against excessive interim enforcement.

3. BGH — EDEKA/Kaiser’s Tengelmann, KVZ 5/16 (18 July 2017)

This decision concerned the requirements for an interim order designed to prevent an infringement of the merger-control standstill obligation.

The BGH examined whether immediate intervention was justified and discussed the requirements for an Anordnungsgrund, or ground for issuing an interim order.

The decision illustrates that the existence of a potential infringement alone does not automatically justify provisional intervention.

There must be a sufficiently concrete risk requiring immediate protection. (NWB Datenbank)

Significance

The case is especially relevant to the principle that:

A probable infringement and an urgent need for intervention are separate requirements.

4. OLG Düsseldorf — VI-Kart 1/15 (V), 9 December 2015

The Düsseldorf Higher Regional Court considered the legality of the Bundeskartellamt's interim measures in the EDEKA/Kaiser’s Tengelmann proceedings.

The court held that the Section 32a requirements were not satisfied in the relevant circumstances.

It stressed that an interim order requires a sufficiently established urgent basis for intervention, rather than merely a theoretical possibility of competitive harm.

The subsequent BGH proceedings provide the higher-level treatment of the dispute.

Importance

The case illustrates judicial scrutiny of:

urgency;

probability of infringement;

proportionality;

procedural foundation; and

the connection between interim and principal proceedings.

5. OLG Düsseldorf — VI-Kart 5/15 (V), 26 October 2016

This decision forms part of the jurisprudential development concerning provisional measures in German competition proceedings.

It demonstrates that interim powers are subject to judicial review and cannot be treated as unlimited administrative discretion.

The court's approach reinforces the requirement that the authority demonstrate a legally sufficient basis for immediate intervention rather than merely relying upon its general competition-enforcement mandate.

Importance

For modern digital markets, the lesson is important:

The faster the intervention, the more carefully the authority must identify the precise legal and factual basis for the intervention.

6. OLG Düsseldorf — VI-Kart 10/15 (V), 15 March 2017

This decision is another important part of the German jurisprudence concerning interim competition measures.

It reinforces the distinction between:

the existence of a possible competition-law violation;

the need for immediate intervention; and

the proportionality of the specific interim remedy.

The case is therefore useful when analysing the limits of the Bundeskartellamt's provisional enforcement powers.

The jurisprudence surrounding Section 32a includes this decision among the principal German authorities addressing interim measures. (Open Legal Data)

12. Meta/Facebook and the Importance of Interim Protection

Although BGH's Meta/Facebook proceedings were not a conventional Section 32a case, they are highly relevant to understanding the practical importance of interim competition enforcement.

The Bundeskartellamt prohibited Meta from combining user data from different sources without adequate consent.

During the litigation, the Düsseldorf Higher Regional Court initially granted suspensive effect to Meta's appeal. The BGH subsequently reversed that position in 2020, allowing the Bundeskartellamt's decision to remain effective during the proceedings. The European Court of Justice subsequently addressed the relationship between competition law and data-protection law in C-252/21. (Bundeskartellamt)

Why this matters

Digital-market harm may become entrenched while litigation is pending.

Thus, although the case did not itself establish a Section 32a order, it demonstrates the broader German judicial concern with whether competition remedies should remain effective during prolonged litigation.

13. EDEKA/Kaiser’s Tengelmann as the Central Warning

The EDEKA litigation is especially important because it demonstrates that the Bundeskartellamt's interim power is not unlimited.

The BGH emphasised that an interim measure requires a proper legal and procedural foundation.

In particular:

there must be an identifiable substantive competition-law issue;

the statutory requirements for interim relief must be satisfied;

the measure must be connected to the principal enforcement proceeding;

urgency must be demonstrated;

proportionality must be observed.

Thus, Section 32a does not allow the Bundeskartellamt to bypass ordinary legal requirements merely because a market appears vulnerable.

14. Application to Digital Platforms

Section 32a becomes particularly significant in digital markets because competitive harm can develop extremely quickly.

Suppose a dominant platform:

changes its ranking algorithm;

disadvantages competing services;

restricts API access;

removes competitors from an app store;

imposes discriminatory interoperability conditions;

prevents data portability; or

gives preferential treatment to its own service.

A conventional investigation could take months or years.

During that time, users could migrate permanently.

The Bundeskartellamt's interim powers therefore potentially allow it to preserve the competitive structure while the substantive case is investigated.

15. Application to Algorithmic Pricing

Algorithmic pricing creates another important context.

Suppose a dominant platform's pricing algorithm allegedly:

excludes low-priced competitors;

penalises independent sellers;

automatically reacts to competitors' prices;

imposes minimum-price-like outcomes; or

facilitates exclusionary pricing.

Waiting for a final infringement decision could allow the algorithm to reshape the market.

An interim order could potentially require:

suspension of a particular algorithmic rule;

modification of discriminatory parameters;

preservation of access;

prohibition of particular pricing restrictions; or

continued supply on specified conditions.

However, the authority would still need to satisfy Section 32a's probability, necessity and proportionality requirements.

16. Application to Data Monopolisation

Data markets provide another potential field.

A dominant undertaking might combine datasets in a way that:

increases entry barriers;

deprives competitors of essential data;

strengthens market power;

facilitates discriminatory algorithms; or

prevents effective competition.

The Meta proceedings demonstrate the Bundeskartellamt's willingness to examine the interaction between data governance and competition law. (Bundeskartellamt)

An interim measure could become particularly relevant where continued data accumulation would make later restoration of competitive conditions practically impossible.

17. Application to Platform Self-Preferencing

The modern digital economy also creates potential situations involving:

Platform → Own service → Preferential ranking → Competitor foreclosure.

Where a dominant platform gives its own downstream service privileged access to:

rankings;

search results;

recommendation systems;

APIs;

data;

visibility;

advertising infrastructure; or

technical functionality,

an interim order could theoretically preserve competitive neutrality while the legality of the conduct is examined.

This is especially relevant to Section 19a proceedings involving large digital companies. The Bundeskartellamt describes Section 19a as enabling earlier intervention against specified practices of companies with paramount significance across markets. (Bundeskartellamt)

18. Relationship With European Union Competition Law

Section 32a operates within the broader European competition framework.

Where Articles 101 or 102 TFEU are implicated, the Bundeskartellamt may also operate within the framework of EU competition law and the European Competition Network.

The German mechanism is particularly significant because it provides a domestic procedural route for rapid intervention.

At EU level, the European Commission also possesses interim-measure powers under EU competition law.

Consequently, German interim enforcement should be understood as part of a wider European movement toward preventing competition harm before irreversible market restructuring occurs.

19. Interim Measures and Network Effects

The importance of Section 32a becomes even clearer in markets characterized by network effects.

Consider:

More users → more data → better service → more users → greater market power.

If allegedly exclusionary conduct accelerates this cycle, the competitive harm can become self-reinforcing.

A later final prohibition may not restore competition because:

users have become locked in;

competitors have disappeared;

data advantages have accumulated;

interoperability has deteriorated; and

switching costs have increased.

Interim intervention therefore has a market-preservation function.

20. Procedural Safeguards

The Bundeskartellamt's power is constrained by several safeguards.

1. Probability requirement

There must be a predominant probability of infringement.

2. Necessity

Immediate intervention must actually be required.

3. Serious harm

Where intervention is based on harm to another undertaking, the harm must be imminent and serious.

4. Proportionality

The order cannot impose unnecessarily extensive restrictions.

5. Temporary nature

The order must be time-limited.

6. Judicial review

The undertaking can challenge the authority's decision before the competent courts.

7. Procedural connection

As demonstrated by the EDEKA/Kaiser’s Tengelmann litigation, Section 32a cannot simply be used independently of the substantive competition-law framework. (Open Legal Data)

21. Distinction From Private Injunctions

Another important distinction is between:

Bundeskartellamt interim measure

and

private-law preliminary injunction.

A private undertaking may seek urgent relief before a German civil court.

The Bundeskartellamt's Section 32a power, however, is an administrative competition-enforcement instrument.

Its primary purpose is protection of the competitive process rather than merely protection of an individual claimant's private rights.

22. Distinction From Fines

Section 32a is also different from a competition fine.

A fine is essentially punitive.

An interim order is primarily preventive.

Thus:

Fine → punishment for unlawful conduct

Section 32 → final termination/remedial intervention

Section 32a → immediate prevention or containment of threatened competitive harm

This distinction is fundamental to understanding the architecture of German competition enforcement.

23. Strategic Importance for Big Tech

The provision has become more significant because German competition law increasingly focuses on ecosystem power.

The Bundeskartellamt has identified major digital companies such as Amazon, Alphabet/Google, Meta, Apple and Microsoft as subject to the special framework of Section 19a, with Amazon's position being confirmed by the BGH in 2024. (Bundeskartellamt)

In such markets, delay itself can become a competitive advantage.

Consequently, the combination of:

Section 19a + Section 32a + Section 32

can be conceptualised as:

identify systemic market power → prevent harmful conduct quickly → investigate fully → impose final remedy.

24. Key Legal Principles From the Case Law

The German jurisprudence supports several important propositions:

Principle 1 — Interim intervention is exceptional

The existence of a suspected infringement alone does not automatically justify an interim order.

Principle 2 — Probability is sufficient, certainty is unnecessary

Section 32a deliberately permits intervention before final proof.

Principle 3 — Urgency is independently important

The authority must establish why waiting for the final decision would be inadequate.

Principle 4 — Interim orders cannot replace final proceedings

The EDEKA/Kaiser’s Tengelmann cases are particularly important on this point.

Principle 5 — Proportionality controls the remedy

The authority must select a measure appropriately connected to the threatened harm.

Principle 6 — Temporary intervention must remain temporary

Section 32a cannot be transformed into a permanent substantive prohibition.

25. Critical Assessment

The principal advantage of Section 32a is that it addresses a central problem of modern competition law:

Competition law can become ineffective if the market disappears before the investigation ends.

This is especially true for:

digital platforms;

AI ecosystems;

app stores;

data markets;

cloud computing;

payment systems;

online marketplaces;

energy platforms; and

highly concentrated infrastructure markets.

However, there is a corresponding danger.

If the authority intervenes too aggressively before the facts are fully established, an interim order itself can:

distort market incentives;

protect inefficient competitors;

discourage innovation;

interfere with legitimate commercial conduct; or

effectively determine the case before judicial review.

The EDEKA/Kaiser’s Tengelmann jurisprudence illustrates why procedural discipline and proportionality are essential. (Open Legal Data)

26. Conclusion

The interim cease-and-desist power of the Bundeskartellamt under Section 32a GWB represents a shift from purely reactive competition enforcement toward preventive market protection.

Its central logic is:

Where an infringement is more likely than not and waiting for a final decision could seriously damage competition or another undertaking, the Bundeskartellamt may temporarily intervene.

The provision is particularly significant in markets where harm is:

rapid;

cumulative;

network-driven;

data-driven;

algorithmic; or

difficult to reverse.

At the same time, the EDEKA/Kaiser’s Tengelmann line of cases demonstrates that the power is subject to meaningful legal constraints. The authority must establish a proper substantive basis, demonstrate the necessity of immediate intervention, respect proportionality, and keep the measure genuinely temporary.

Accordingly, Section 32a should not be understood as an unrestricted “emergency veto” over business conduct. It is better understood as a temporary competition-preservation instrument, positioned between investigation and final enforcement.

Core Case-Law Authorities

BGH, KVR 57/16, EDEKA/Kaiser’s Tengelmann I (14 November 2017) — requirements surrounding interim intervention and merger standstill.

BGH, KVR 64/17, EDEKA/Kaiser’s Tengelmann II (17 July 2018) — limits on reliance upon Section 32a and requirement for a proper substantive proceeding. (Bundesgerichtshof)

BGH, KVZ 5/16 (18 July 2017) — requirements for an urgent ground for an interim order concerning the merger standstill obligation. (NWB Datenbank)

OLG Düsseldorf, VI-Kart 1/15 (V) (9 December 2015) — judicial scrutiny of the Bundeskartellamt's interim orders in EDEKA/Kaiser’s Tengelmann.

OLG Düsseldorf, VI-Kart 5/15 (V) (26 October 2016) — judicial limits on provisional competition intervention.

OLG Düsseldorf, VI-Kart 10/15 (V) (15 March 2017) — requirements concerning the legal and factual basis of interim competition measures.

BGH, Meta/Facebook proceedings (2020) — important for the effectiveness of competition measures during litigation and the question of suspensive effect.

CJEU, C-252/21, Meta Platforms (2023) — important for the substantive competition-law framework underlying the Bundeskartellamt's Facebook intervention.

Overall proposition: German competition law increasingly recognises that delayed enforcement can itself produce irreversible competitive harm, but Section 32a attempts to balance that concern against the equally important principle that an undertaking should not be subjected to an effectively final prohibition merely on the basis of an untested allegation.