Antitrust law

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history

Company-to-business cartels began to emerge around 1870; they were a consequence of increasing industrialization. Only in the United States did a kind of antitrust law emerge at an early stage - as early as the end of the 19th century - the antitrust legislation. It did not incriminate "cartels" per se, but the restriction of economic activities ("trade restrictions"). This principle enabled the majority of cartels, but not all, to be banned. In the rest of the world, cartels were predominantly or in principle permitted until the end of World War II . However, cases of abuse could be prosecuted and there were antitrust authorities in some countries - such as Germany and Italy. In the 1950s, antitrust laws were passed in Western Europe and elsewhere at the instigation of the USA, which took over the strict American antitrust prohibition. This principle now applies practically worldwide.

For some years now, the cartel authorities have been using bonus schemes to uncover and break up cartels : They offer companies that want to get out of a cartel a key witness status and a reduction or waiver of the otherwise payable fine. This procedure is quite successful.

Case studies from antitrust and monopoly law

Cases of real cartels are listed, which are mostly - but not always - prohibited. Furthermore cases of monopoly market power (here also the so-called "fake" cartels, which are run by a monopoly third party):

  • The German match producers were organized like a cartel between 1930 and 1983: with the state monopoly on ignition goods , which existed from 1930 in the German Reich and from 1949 to 1983 in the Federal Republic of Germany , a state sales monopoly was established. The production quotas were given to the actual manufacturers at fixed prices, which resulted in a (fake) cartel depending on the dominant monopoly.
  • In the Benrath gas station case , the “conditions for the sale of car fuels” of a convention of fuel dealers were prohibited by a ruling by the Reich Court in 1931 as being anti-competitive.
  • Wachskartell , a cartel between ten paraffin wax manufacturers, existed between 1992 and 2005
  • Elevator and escalator cartel (1995-2004; the EU Commission imposed a fine of 992.3 million euros in 2007),
  • Vitamin Cartel: In 1999, 69 pharmaceutical and chemical companies were fined for fixing prices for vitamins
  • Paper Cartel - There were several paper cartels. In 2001 the EU Commission imposed a fine of EUR 313.7 million on ten companies.
  • Bierkartell (2006–2008), the Federal Cartel Office imposed a total of 338 million euros on the breweries involved
  • Cement Cartel - the Federal Cartel Office imposed fines of EUR 661 million in 2004; the OLG Düsseldorf reduced this by half in 2009,
  • Mattress cartel , vertical price agreements between several manufacturers of bed mattresses from 2005 to 2009
  • Elevators and escalators cartel , also lift cartel called - price fixing for elevators and escalators in Europe, 2,007 companies were sentenced to a total of 992 million euro fines. The focus here was on Thyssen Krupp.
  • Zipper Cartel: a six year old cartel of the industry leader YKK and other European manufacturers. The EU Commission's 2007 fines totaled almost 330 million euros.
  • Coffee cartel , illegal price agreements between Tchibo , Melitta and Dallmayr from 2000 to 2009. The Federal Cartel Office imposed a fine of 159.5 million euros.
  • Rail collective cargo conference in Austria until 2007
  • Fire truck cartel (until 2011),
  • Auto glass cartel. Proceedings against the manufacturers Asahi, Pilkington, Saint-Gobain and Soliver: 1.38 billion euros fine in November 2008,
  • Intel : The EU Commission imposed a fine of EUR 1.06 billion in 2009 for abusive market power.
  • the EU Commission imposed a fine of 899 million euros on Microsoft ,
  • Railroad Cartel - made known in mid-2011,
  • The EU Commission accuses LG, Philips, Panasonic, Samsung, Toshiba and Technicolor of negotiating prices for picture tubes and dividing the market among themselves for over ten years. Technicolor paid the fine; the other six sued the ECJ in June 2013 against their penalties, which together amount to almost 1.5 billion euros.
  • Club Europa : A steel cartel that was fined 518 million euros in June 2010.
  • Air freight cartel: A cartel made up of eleven international air freight companies that was fined a total of 799.4 million euros in November 2010.
  • Fire fighting vehicles cartel : Cartel on the German market for fire fighting vehicles, disclosed by the Federal Cartel Office in February 2011, fines totaling 68 million euros.
  • Hydrant cartel : The hydrant cartel consisted of 7 companies that carried out illegal price fixing and gained a market share of 70% in Germany. The antitrust proceedings were opened in 2011.
  • A cartel that until 2011 had agreed prices and quantities on the German market for railroad tracks called itself “ rail friends” .
  • Sugar cartel : In February 2014, the German companies Südzucker , Nordzucker and Pfeifer & Langen were fined € 280 million by the Federal Cartel Office for anti-competitive agreements .
  • Wallpaper cartel : In February 2014, fines of 17 million euros were imposed on the wallpaper manufacturers AS Création Tapeten AG ( Gummersbach ), Marburger Tapetenfabrik ( Kirchhain ), Erismann ( Breisach ) and Pickhardt + Siebert (Gummersbach) as well as the Association of the German Wallpaper Industry (VDT) imposed. Tapetenfabrik Tapetenfabrik Gebrüder Rasch from Bramsche , which was also involved in the anti-competitive agreements, and which had started the case, made use of the leniency program and got away with it without penalty.
  • Maritime conferences: to this day a permitted, but state-monitored type of cartel

Disambiguation

Antitrust law does not protect the integrity and fairness of competition. However, antitrust law, together with fair trading law, is usually referred to collectively as competition law.

Also, the procurement law is not a matter of competition law, although in Germany the Competition Act is regulated.

Various states have enacted sector-specific laws for antitrust issues in certain areas of the economy, the enforcement of which is entrusted to specific regulatory authorities. This applies particularly to the telecommunications and electricity sectors. When applying the law, these specific laws take precedence over general antitrust law. In Germany, the Federal Network Agency is the relevant regulatory authority for the electricity, gas, telecommunications, post and rail sectors.

Individual states

Germany

Fines from the Federal Cartel Office (2003-2014)
year Total amount in € million
2003
  
 717
2004
  
 58
2005
  
 164
2006
  
 5
2007
  
 435
2008
  
 314
2009
  
 298
2010
  
 267
2011
  
 190
2012
  
 316
2013
  
 240
2014
  
 1.010
Data source: Federal Cartel Office

Antitrust law in Germany began in 1923 with the Ordinance Against the Abuse of Economic Power , which was replaced on January 1, 1958 by the Act against Restraints of Competition (GWB). Its scope extends to all competition violations, i.e. the accumulation and abuse of market power as well as the limitation of the competitive behavior of independent market participants within the scope of the Federal Republic of Germany. According to the GWB, cartels are generally prohibited, but permissible if they meet certain exemption requirements, such as the SME cartels according to Section 3  GWB. In Germany, the abuse of market power includes, in addition to the abuse of a dominant position, the abuse of a position with a strong market position based on relative or superior market power.

The ministerial permit pursuant to Section 42  GWB deals with the case of a merger of companies that has not been approved by the Federal Cartel Office. In this case, under certain conditions, the Federal Minister of Economics and Technology can, upon request, grant permission for the merger. The Federal Ministry examines whether restrictions of competition in the event of a merger are outweighed by macroeconomic advantages. The companies involved must apply for ministerial approval within one month of receiving the prohibition order from the Federal Cartel Office. However, the ministerial permit under Section 42 GWB cannot be used to legalize a cartel. In Germany, the Federal Cartel Office and the State Cartel Offices are the competition authorities.

Whether a proposed merger is subject to merger control can be determined either by German law, by European law or by a third law (e.g. US antitrust law). German merger control does not intervene if a merger project is subject to European merger control under European law. The principle of one-stop-shop applies . H. the European merger control replaces, insofar as it is applicable, all national merger controls of the European Community.

Negative certificate

In antitrust law, the negative clearance is the decision of the antitrust authority in accordance with Section 32c GWB, according to which it does not use its powers under Section 32 GWB and Section 32a GWB (removal order; provisional measures) with regard to a specific agreement or certain behavior by companies or associations of persons will do. The negative clearance must be applied for from the antitrust authorities. It is at the discretion of the antitrust authorities whether they want to comply with the relevant application from the companies concerned. This negative clearance is subject to subsequent intervention by the antitrust authorities if more recent findings about the agreement or behavior affect the main reasons for the decision according to Section 32c GWB. This negative clearance is therefore not to be interpreted as a final exemption. The negative certificate is only an assurance within the meaning of § 38 VwVfG and has no binding effect. As part of the legal exception, the antitrust authorities will regularly limit negative certificates to precedents with a particularly broad impact. In principle, the companies themselves have to assess whether an agreement violates the prohibition of § 1 GWB and Art. 101 Para. 1 TFEU or whether there is abusive behavior within the meaning of § 19 GWB to § 21 GWB and Art. 102 TFEU.

Austria

In Austria this forms the Cartel Act and the Local Supply Act. The first part of the Antitrust Act contains the prohibition of cartels (with exceptions, for example, for small cartels), the prohibition of abuse of a dominant position and rules for merger control. The other main sections mainly contain procedural law provisions as well as standards on the cartel court and cartel court. In Austria, the Higher Regional Court of Vienna forms the Cartel Court (KG) of first instance; the Supreme Court decides on appeals in the second and last instance as a cartel court (KOG) and only examines legal questions. The official parties are the Federal Competition Authority and the Federal Cartel Prosecutor . In addition, there are also criminal law provisions to protect competition, which threaten anti-competitive agreements in procurement procedures with a judicial penalty.

Switzerland

In Switzerland , which is not a member of the EU, the Federal Act on Cartels and Other Restraints of Competition of October 6, 1995 (Cartel Act, KG, SR 251) is the relevant legal norm. According to this, agreements (cartels) are inadmissible if they significantly impair competition in a market and cannot be justified by economic efficiency or if they eliminate effective competition. In the case of horizontal volume, price and area agreements as well as vertical agreements on minimum or fixed prices as well as area assignments, it is assumed that they eliminate effective competition and are therefore inadmissible (Art. 5 KG). In Switzerland, there is a separate law with regard to excessive prices from powerful companies, the Price Surveillance Act. Price monitoring is responsible for its application .

For a long time, cartels in Switzerland were not viewed as harmful to the national economy. B. also considered useful in terms of employment policy. The first antitrust law dates from 1964. As early as 1918, there was talk of permissible “contractual prohibitions on competition”, as a quasi-natural result of freedom of trade . Cartelization was taken to extremes during the heyday of corporatism in the 1930s and 1940s. Numerous studies comparatively dealt with Nazi German and Swiss antitrust law, although Switzerland generally only included corporatist elements in its legal system to a limited extent. Another work from 1941 dealt with the corporate forms AG , GmbH and Cooperative “in their suitability for cartels”: Cartels did not lead a frowned shadow existence, but were officially recognized as a positive economic element. Even decades after the war, they were still politically welcomed as a protective measure for small businesses against overpowering large companies. It was not until the pressure of the export industry, which increasingly caused domestic cost pressure to create, that the mood turned. In Switzerland, the application of the cartel law is the responsibility of the Competition Commission . Decisions by the Competition Commission can be referred to the Federal Administrative Court and then to the Federal Court .

European Union

At EU level, EU antitrust law is governed by Articles 101 and 102 of the Treaty on the Functioning of the European Union . The Council of the European Union (according to Art. 103 II lit. e TFEU) has enacted specific secondary law provisions. These are in particular Regulation (EC) 1/2003 and the block exemption regulations in the field of cartel prohibitions and abuse control. The merger control regulation in the area of ​​concentration control was however enacted in accordance with the competence supplement clause of Art. 352 TFEU.

In relation to the antitrust law of the respective member states, EU antitrust law has (application) priority, Art. 3 Para. 2 Clause 1 Regulation 1/2003. The national antitrust law of the GWB should henceforth only be applicable in cases that are not relevant for trade between the member states. In concrete terms, this should be structured in such a way that both the national antitrust authorities and the European Commission should in principle have parallel responsibility. In order to ensure smooth cooperation between the European Commission and the national authorities and to prevent inconsistent application of the law within the European Union, a number of procedural rules have been included in Chapter IV of Regulation 1/2003, although the European Commission has been assigned a leading role. The newly introduced information and consultation procedure is only mentioned as an example. In the EU, the authority subordinate to the Commissioner for Competition , the Hearing Officer and the Member State competition authorities are jointly appointed to enforce EU antitrust law, while the national competition authorities are responsible for enforcing national antitrust law.

United States

The first antitrust law in the USA was the so-called Sherman Antitrust Act of 1890. This was supplemented by the Clayton Antitrust Act in 1914 , which in turn was expanded or changed several times. In contrast to EU antitrust law , US law provides the option of unbundling dominant companies. In the US, the Federal Trade Commission and the US Department of Justice are the regulatory agencies.

literature

  • Maximilian Volmar, Jonas Kranz: Introduction to antitrust law taking into account the 9th amendment to the GWB , Legal Training 2018, 14.
  • Rainer Bechtold, Wolfgang Bosch: The development of German antitrust law. (Reporting period: December 2009 to September 2011), NJW 48/2011, 3484 (previous article in NJW 2009, 3699)
  • Tony A. Freyer: Antitrust and global capitalism 1930-2004. New York 2006.
  • Thomas Kapp: Antitrust law in corporate practice. What entrepreneurs and managers need to know . Verlag Springer Gabler, Wiesbaden 2013, ISBN 978-3-8349-3028-6 .
  • Convergence of competition laws: one world, one antitrust law. Papers of the XXXV. FIW Symposium in Innsbruck 2002, Cologne 2002.
  • Michael Kling, Stefan Thomas: Antitrust Law. Munich 2007.
  • Ulrich Loewenheim (Ed.): Antitrust law: German and European law. Munich 2008.
  • Gerald Mäsch: Practical comment on German and European antitrust law. Munster 2010.
  • Andreas Neef: Antitrust law. Heidelberg 2008.
  • Wyatt C. Wells: Antitrust and the Formation of the Postwar World. New York 2002.

Web links

Standard texts

Other web links

Individual evidence

  1. ↑ Freyer, Tony A .: Antitrust and global capitalism 1930-2004 , New York 2006 .; Schröter, Harm G. (1994): Cartelization and Decartellization 1890-1990 . In: Vierteljahrschrift für Sozial- und Wirtschaftsgeschichte 81 (4), pp. 457–493; Wells, Wyatt C .: Antitrust and the Formation of the Postwar World , New York 2002.
  2. ↑ Freyer, Tony A .: Antitrust and global capitalism 1930-2004 , New York 2006 .; Schröter, Harm G. (1994): Cartelization and Decartellization 1890-1990 . In: Vierteljahrschrift für Sozial- und Wirtschaftsgeschichte 81 (4), pp. 457–493; Wells, Wyatt C .: Antitrust and the Formation of the Postwar World , New York 2002.
  3. ↑ EU buttons its zipper cartel . In: Handelsblatt . September 19, 2007. Retrieved April 24, 2012.
  4. ↑ Coffee giants have to pay a multi-million cartel fine. Illegal price fixing. In: Spiegel-Online , December 21, 2009. Accessed December 21, 2009.
  5. ↑ Commission imposes the highest-ever cartel fine (more than EUR 1.3 billion) on four car glass manufacturers ; Summary (German) (PDF)
  6. ↑ Antitrust law: Intel has to pay EUR 1.06 billion for abuse of its dominant position and stop illegal behavior.
  7. ↑ Antitrust law: Commission imposes fines of EUR 899 million on Microsoft for failure to comply with its decision of March 2004 , June 27, 2012: Court reduces fines to EUR 860 million
  8. ↑ Accused manufacturers are suing the EU
  9. ↑ n.v .: EU imposes million fine on steel cartel. In: faz.net , June 30, 2010.
  10. ↑ Werner Mussler and Helmut Bünder: 800 million euros fine for air freight cartel. In: faz.net , November 9, 2010.
  11. ^ Drastic penalties for German sugar manufacturers because of cartel agreements. In: Handelsblatt . February 18, 2014, accessed March 5, 2014 .
  12. ↑ A fine of millions against the manufacturer - the wallpaper cartel glues consumers. In: n-tv . February 25, 2014, accessed March 5, 2014 .
  13. ↑ Photo gallery for: Record fines - cartel offenders pay more than one billion euros for the first time. In: faz.net , image 1 of 2
  14. ↑ from November 2, 1923 ( RGBl. I p. 1067 )
  15. ↑ of July 27, 1957 ( BGBl. I p. 1081 )
  16. ↑ Klaus Rutow: Client Policy Handbook (PDF; 86 kB) at www.fr-lawfirm.de, requested on May 20, 2011
  17. ↑ Fritz Rittner / Meinrad Dreher, European and German Commercial Law , 2008, p. 478
  18. ↑ Christopher Säcker, The Influence of Sector-Specific Regulation on the Application of German and Community Antitrust Law , 2006, p. 84
  19. ↑ Cartel Act
  20. ^ Walter Brugger : The assessment of fines (PDF; 1.7 MB) at www.profbrugger.at, requested on October 20, 2009
  21. ^ Walter Brugger : Antitrust Criminal Law
  22. ↑ L. Schürmann / WR Schluep : Commentary on the (old) cartel law , 1988