Antitrust prohibition
As Antitrust those are usually shortened antitrust provisions referred that such restrictions of competition prohibit or limit that originated in the cooperation of independent companies have. These include, for example, price agreements, purchasing cooperations, non-compete agreements, exclusive purchase or delivery obligations or market sharing.
In German law , the prohibition of cartels is regulated in Section 1 of the Act against Restraints of Competition ; the counterpart in European law can be found in Art. 101 of the Treaty on the Functioning of the EU (TFEU). The Federal Cartel Office or the state cartel authorities in Germany and the European Commission at Union level monitor compliance with the ban on cartels .
German law
Prohibition
Section 1 of the German Act against Restraints of Competition (GWB) provides:
- Agreements between companies, resolutions by company associations and concerted practices that aim to prevent, restrict or distort competition are prohibited.
The central feature of this fact is the prevention, restriction or distortion of competition or, more briefly - since it is not necessary to delimit the sub-characteristics "prevention", "restriction" and "distortion" - the restriction of competition. Any impairment of the freedom to operate independently and independently as a supplier or customer of products or services is to be regarded as a restriction of competition.
Restrictions of competition are therefore, for example, agreements on pricing, the limitation of research, production or sales capacities, the division of markets in particular according to spatial or customer-related characteristics, regulations on opening times, non-compete obligations, quantitative and / or exclusive purchase and delivery obligations, market information systems that affect the secrecy of the competition, agreements on terms of sale or purchase.
The prohibition from § 1 GWB is subject to competition restrictions between competing companies (so-called horizontal restrictions ) and, since the alignment with European law, also so-called vertical restrictions, for companies that operate at different economic levels. The companies concerned do not necessarily have to be active competitors; It is sufficient that one company has the legal and economic prerequisites to enter the market of the other company as a competitor within a reasonable period of time, in other words a market entry would be commercially viable (so-called potential competition ).
Exceptions to the prohibition
Certain types of restraints of competition can be exempted from the ban on cartels under special conditions (legal exception). These are:
- Standard, type and condition cartels . Agreements and resolutions that deal with the uniform application of standards or business, delivery and payment conditions (Section 2 GWB)
- Specialization cartels . Agreements and resolutions that deal with the rationalization of economic processes through specialization (Section 3 GWB)
- SME cartels . Agreements and resolutions to rationalize economic processes through a different form of operational cooperation than through specialization and purchasing cooperations (Section 3 GWB)
- Rationalization cartels . Agreements and resolutions on other rationalization of economic processes (Section 5 GWB) → no longer applicable (see GWB)
- Structural crisis cartels . Agreements and resolutions to adapt capacities to declines in sales that are based on a sustainable change in demand (Section 6 GWB) → no longer applicable (see GWB)
- Other cartels that contribute to the improvement of the development, production, distribution, procurement, return or disposal of goods or commercial services (Section 7 GWB) → no longer applicable (see GWB)
According to the new law, exemption from the ban on cartels occurs automatically if the conditions for exemption are met.
Effects of the ban
Agreements and resolutions that violate the ban on cartels are ineffective from the start . If services have been exchanged on the basis of an agreement that violates the ban on cartels, they may have to be reversed in accordance with the right to enrichment .
In addition, the Federal Cartel Office can order the companies involved to stop the prohibited behavior. In addition, the violation of the ban on cartels is unlawful and can be punished with a fine of up to 1,000,000 euros (Section 81 (4) sentence 1 GWB) or up to 10% of the (total) company turnover (Section 81 (4) sentence . 2 GWB). In addition, there is the possibility of skimming off the additional proceeds generated by the infringement (Section 34 GWB).
Finally, under civil law, injunctive relief and claims for damages may come into consideration, especially from competitors.
Individual evidence
- ↑ Leaflet for cooperation possibilities of the German Federal Cartel Office ( Memento of December 18, 2012 in the Internet Archive )
