Act against Restraints of Competition

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Basic data
Title: Act against Restraints of Competition
Short title: Antitrust Act (not official)
Abbreviation: GWB
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Competition law , antitrust law
References : 703-5
Original version from: July 27, 1957
( BGBl. I p. 1081 )
Entry into force on: January 1, 1958
New announcement from: June 26, 2013
( BGBl. I p. 1750 )
Last change by: Art. 2 G of June 25, 2020
( Federal Law Gazette I p. 1474, 1477 )
Effective date of the
last change: 		June 30, 2020
(Art. 5 G of June 25, 2020)
GESTA : C123
Weblink: Legal text
Please note the note on the applicable legal version.

The Act against Restraints of Competition ( GWB ) is the central norm of German antitrust and competition law .

The law aims to maintain functioning, unhindered and as diverse as possible competition ; it therefore regulates and combats, above all, the accumulation and abuse of market power as well as the coordination and limitation of the competitive behavior of independent market participants.

The GWB is not to be confused with the law against unfair competition (UWG) and the law on the establishment and operation of a register to protect competition for public contracts and concessions (Competition Register Act - WRegG). The UWG is primarily intended to ensure the morality , integrity and fairness of competition.

content

In detail, the law mainly contains provisions relating to

For details of the regulatory areas, see the special articles referred to in each case.

The law against restraints of competition is influenced and overlaid in many ways by EU competition law. This applies, for example, and especially insofar as the EU-wide - and not the German - cartel ban under Article 101 of the TFEU (formerly Article 81 of the EC Treaty ) applies to restrictions of competition that can affect trade between the member states . applies, and corporate mergers , provided they reach the corresponding turnover thresholds, are subject to European and not German merger controls.

On the occasion of the modernization of the secondary EU competition law in connection with the eastward expansion of the European Community with effect from May 1, 2004, the GWB was also subjected to a comprehensive revision, which in particular fundamentally redesigned the provisions on restraints of competition, namely the ban on cartels, and the provisions of European law has adjusted.

The law accepts existing market power. It does not provide for the possibility of unbundling existing companies. The Act against Restraints of Competition (with the exception of public procurement law ) is implemented and monitored primarily by the Federal Cartel Office or - insofar as the GWB permits - by the state cartel authorities in cases whose significance does not extend beyond the territory of a federal state.

Origin and development

Creation of the GWB

After the Second World War , the Potsdam Agreement (Part III, Art. 12) provided for the short-term decentralization of the German economy, which was heavily intertwined during the war. In 1947, the issued British , American and French military government laws and regulations Dekartellierung ( English decartelization ). In addition to the political goal of reducing German economic output and armaments capacity , the principle of freedom of competition should also be ensured, based on the US anti-trust policy .

In 1948, three competing reports were submitted for a cartel law. A first ministerial draft was presented in 1951. The first government draft was introduced in 1952. The Federation of German Industries (BDI) commissioned an expert report that was completed in 1953. As a result, the BDI proposed its own draft.

In 1955 the competence of the allied de-cartelization laws passed to the Federal Minister of Economics . In the same year, there were many competing bills in the room. A year later there were disputes over the version, whereby the merger control was removed. The Bundestag passed the GWB on July 3, 1957. The law came into force on January 1, 1958 and replaced the Allied decartelation regulations.

The law passed in 1958 was based on the idea of ordoliberalism of the Freiburg School . It was up to the state to create an environment that was as complete as possible and free competition . A strict ban on cartels (the so-called prohibition principle ) was therefore to be provided as well as possibilities to disentangle companies and to prohibit company mergers. The prohibition of cartels in § 1 GWB was restricted by numerous exceptions §§ 2 to 8 GWB. At first, coordinated behavior was also not covered by the law. The law initially did not make any statements about which bodies are authorized to control mergers.

The market form of complete competition proved to be unsuitable as a model for competition policy. It was doubted whether the hoped-for performance competition could even be realized in a completely competitive market. In neoclassical theory, in such a market the only thing companies could do was vary their quantities at market-set prices. Even under less strict premises, there would be the problem that successful market pioneers with consumer preferences (thus the possibility of active pricing policy) contradict the theoretical postulate of homogeneity.

Novellas and reforms

The GWB was amended for the first time on January 1, 1965. The definition of abuse that was initially very narrow in Section 19 GWB was abandoned and replaced by a general clause . The cartel authority had previously had to provide evidence "that the prices or terms and conditions differ significantly from the status that would exist if there was effective competition and that there is no objective justification for this fact". In addition, the cartel authority u. a. the right to set fines independently ( Section 81 GWB ).

After taking office as Federal Minister of Economics (1966), Karl Schiller had another amendment to the GWB prepared. In 1969 officials from the ministry presented a “new model of competition policy”. The paper was largely based on the concept presented by Erhard Kantzenbach a few years earlier for determining the optimal level of competition .

The 2nd amendment came into force in 1973, with which the GWB was fundamentally revised. So were u. a. Relief was achieved for medium-sized companies, the control of abuse in vertical pricing was strengthened and the standards for notifying company mergers were made more precise. The prohibition of concerted behavior (Section 25 (1) GWB) has also been added. In addition, the Monopolies Commission (according to § 44 , § 45 , § 46 , § 47 GWB ) was established.

The 3rd amendment followed in 1976. In particular, merger control in the press area has been tightened in order to ensure diversity of the press and freedom of information. This meant that smaller mergers in the press area were also subject to merger control.

The law was changed in 1980 by the 4th amendment. Here, among other things, the provisions for company mergers have been tightened, the prohibition of discrimination supplemented and individual elements of abuse specified. In 1989, changes again came into force as part of the 5th amendment. Among other things, purchasing cooperations were legalized for small and medium-sized enterprises , the market dominance criteria were supplemented by vertical elements and the regulations against horizontal displacement practices were tightened.

The 6th amendment followed in 1998. Above all, a limited harmonization with European competition law was achieved here. B. the cartel ban as well as the abuse of the dominant position as a real ban. Whereas cartels or companies with coordinated behavior previously had to pursue the actual goal of restricting competition in order to be covered by the ban on cartels (so-called object theory ), the existence of restrictive effects on competition has been sufficient since then ( subsequent theory ).

The 7th GWB amendment came into force on July 1, 2005, which resulted in an almost complete alignment with the provisions of EU antitrust law ( Art. 81 , Art. 82 EC). The questions of press cartel law were initially excluded.

In the course of time, a number of special regulations that were regulated in Sections 4 to 18 GWB have been repealed. Such special regulations existed, for example, for condition cartels (which were aimed at uniform payment conditions, among others, formerly Section 2 (2)) or structural crisis cartels (formerly Section 6). Such cartels could possibly be approved by the Federal Cartel Office. The ministerial permit formerly provided for in Section 8 , with which the Federal Minister of Economics could approve any cartel upon request for predominant reasons of the economy as a whole and the common good , was not used (as of 1999).

9. Amendment to the GWB 2017

The 9th Amendment to the GWB, which came into force on June 9, 2017, implements the EU Antitrust Compensation Directive in particular . The main changes are:

  • Clarification that a market can also exist if services are provided free of charge ( Section 18 (2a) GWB),
  • Expansion of the catalog of factors for market power (Section 18 (3a) GWB),
  • Expansion of merger control to include companies with low sales that are acquired at high purchase prices (the reason was the purchase of WhatsApp , Section 35 (1a) No. 3 in conjunction with Section 38 (4a) GWB),
  • Closing the sausage gap through the introduction of group liability ( Section 81 Paragraph 3a to 3e GWB),
  • Extensive exemption from press cooperation ( Section 30 GWB).

In antitrust damages law:

  • Legal confirmation of the rebuttable presumption already applied by the case law that a cartel has caused damage,
  • Introduction of a presumption of passing-on damage in favor of indirect customers,
  • Limitations of liability for small and medium-sized companies and key witnesses,
  • Right to disclosure of information in the run-up to a compensation process,
  • Creating incentives for comparisons.

However, the introduction of collective redress options, such as class actions , which was repeatedly called for in the legislative process , was omitted.

Changing mission statement

The underlying model of complete competition ( Polypol ) in connection with the interests of German industry created tensions right from the start. Since 1973, the concept of functional competition (based on John Maurice Clark ) and thoughts from Kantzenbach's concept of optimal competition intensity have dominated the purpose of the GWB.

literature

  • Malte Müller-Wrede : GWB procurement law. Comment . Bundesanzeiger Verlag, Cologne 2016, ISBN 978-3-8462-0550-1 .
  • Lisa Murach-Brand: Antitrust in German: The Influence of the American Allies on the Law against Restraints of Competition (GWB) after 1945 (= contributions to the legal history of the 20th century. 43). Mohr Siebeck, Tübingen 2004, ISBN 3-16-148279-4 .
  • Helmut Köhler (Ed.): Competition law and antitrust law . CH Beck, Munich 2008, ISBN 978-3-406-57635-5 .
  • Rudolf Weyand: Procurement Law. Practical commentary on GWB, VgV, SektVO, VOB / A, VOLA / A, VOF. 3. Edition. Munich 2011, ISBN 978-3-406-57874-8 .
  • Maximilian Volmar, Jonas Kranz, Introduction to antitrust law taking into account the 9th amendment to the GWB, Legal Training 2018, 14.

Web links

Individual evidence

  1. ↑ a b c d e f g Hartmut Berg: Competition policy . In: Vahlens Compendium of Economic Theory and Economic Policy. Volume 2. , 7th edition, Vahlen-Verlag, Munich 1999, ISBN 3-8006-2382-X , pp. 307, 314, 336-339, 344
  2. ↑ a b c d e f g h i Ingo Schmidt: Competition policy and cartel law , 6th edition, Stuttgart 1999, ISBN 3-8282-0090-7 , pp. 161–166.
  3. ↑ https://rsw.beck.de/aktuell/meldung/neunte-gwb-novelle-tritt-in-kraft
  4. ^ Ninth law amending the law against restraints of competition of June 1, 2017 (Federal Law Gazette I p. 1416), text, changes and reasons
  5. ^ According to Kahlenberg / Heim: German antitrust law in the reform: overview of the 9th GWB amendment, Betriebs -berat 2017, 1155; Volmar / Kranz, Introduction to Antitrust Law taking into account the 9th Amendment to the GWB, Legal Training 2018, 14 ff.
  6. ↑ a b Michael Dose: The 9th amendment to the GWB and consumer protection . In: Consumer and Law (VuR) . 2017, p. 297-302 .