Antitrust Law

„Antitrust law“and „competition law“

Competition Law (commonly called advertising law) concerned the protection of anti-trust competitions. Therefore, “antitrust law” is considered part of the competition law. However, in practice, there are only isolated intersections between the two legal areas: in simple terms, antitrust law prevent cartels from individual advertising transactions between the market participants. In Germany, the Federal Cartel Office (together with the Land Competition Authorities) is responsible for the protection of competition.

Where is the antitrust law regulated?

The Act against Restrictions on Competition (GWB), or so-called Antitrust Law (Kartellgesetz in Germany) regulated the German anti-trust law: it came into force on the 1st January 1958 and has been revised six times since then, most recently by a comprehensive amendment in 1999. In addition to the German law, the European competition law is particularly important, and it is usually carried out by the European Commission – as competition authority at a European level-.

What belongs to antitrust law?

The main aspects of today´s antitrust law are the enforcements of the ban on cartels, the implementations of the merger control and the exercise of abuse control over dominant companies. Since 1st January 1999, the protection of tenderers in the awarding of public contracts has been added.

German Federal Cartel Office

The Federal Cartel Office has the power of prohibition of mergers, forbid abusive practices, issue new requirements and impose fines. Moreover, the antitrust law concede to the Federal Cartel Office, extensive investigative powers. The FCO owebsite offers numerous additional information.

Decisions of the Federal Cartel Office

The antitrust decisions of the Federal Cartel Office are taken following a judicial procedure made by the competent department, responsible in the particular branch.

What do we need in order to deal with your anti-trust matters?

Antitrust Law may concern three different aspects regarding ban on cartels, merger control and procurement law. All details have to be discussed and coordinated in individual cases because of the complexity and the strictest confidentiality.

What makes Horak Attorneys at Law standing out in antitrust law proceedings?

The Antitrust law (that also includes procurement law as a particular matter) is one of our areas of major focus. The Act against Competitive Restrictions (GWB), also called the Anti-trust Act or Basic Law of the Market Economy, protects competition as the foundation of the Economic Regulation. The three main columns of this Act are cartel prosecution, merger control and abuse control.

The ban on cartels and the control of business combinations serve to maintain competitive markets structures and to prevent the development of market´s power. Within the framework of abusive control, on the other hand, it is always controlled that already existing market players are acting fairly against other market participants.  Furthermore, the section §§97-129 of the GWB (Act against Competitive Restrictions) ensure that public contracts are correctly awarder through a fair competition.

Restrictions on competitions are generally not conducive for companies. For instance, restrictions on imports, tariffs, and subsidies from competitors or a direct regulation are considered hindering for a company; also price agreements, market allocations, volume agreements or abuse of dominant position hinder a “natural” competition.

Legal Practice in Antitrust Law

Our attorneys for antitrust law deal with the following antitrust/licensing issues:

Ban on cartels and prohibition of misuse of a dominant position

• Consultation and representation for antitrust enforcement purposes of cooperation with competitors (horizontal and vertical antitrust investigation);
• Execution of claims for damages (for example against “monopolists” on the basis of agreed cartel prices);
• Consultation, representation and defence from a prohibition order issued by the antitrust authorities;
• Consultation and representation in case of investigation´s measures (especially during researches of business premises);
• Enforcement/Defence of nullity of an agreement for infringement of the ban on cartels;
• Consultation and representation in case of abusive practices of market-dominant/market-strong companies (such as delivery refusals, obligation to contract, compulsory licensing, discrimination, difference in treatment without a factual reason).

Merger Control

• Consultation for organizations of planned business combinations (M&A, anti-trust etc.), according to antitrust law;
• Application for merger proceedings by the competent cartel authority;
• Consultation and representation of companies not directly involved in the merger against the antitrust authorities (for example, appeal of a merger clearance);
• Enforcement/defence of the nullity of a merger carried out in breach of the non-compliance clause

Procurement Law

• Consultation and representation in connection with public tenders (both tendering bodies and tenderers in different procurement procedures);
   
• Preparation/examination of the tendering planning and documents;
   
• Implementation of the awarding documentation;
   
• Monitoring of the awarding procedure, the surcharge and the subsequent legal support during implementation;
   
• Examination, consultation and representation in damage proceedings.

Sanctioning and criminal proceedings

• In case of ban on cartels, prohibition of misuse of a market-dominating position and merger control, in representation and defence against fines.
• Consultation, representation and defence against criminal penal procedures for cartel infringement (in particular fraud allegations pursuant to §§ 263, 298 StGB).

Anti-trust main topics (ban on cartel, merger control, monitoring of misuses, procurement law)

The competition between different companies of all sizes constitutes a basis for the liberal economic constitution. It is the basis for antitrust law with its merger rules, for competition law and for the prevention of monopolies. The anti-trust law is regulated in Germany by the so-called GWB (Gesetz gegen Wettbewerbsbeschränkungen = Restriction of Competition Act), competition law is regulated by the so-called UWG (Gesetz gegen den unlauteren Wettbewerb= Unfair competition Act). The individual aspects of antitrust law, merger control and control of misuses, as well as procurement law have to deal with the following aspects:

Merger Control Procedures

In the case of merger control procedures, we firstly check the necessity and then support our clients before the Federal Cartel Office or the European Commission. Moreover, we are involved in international merger control proceedings.

Cartel Fine Procedures

The relative fines inflicted by the competent antitrust authorities are subjected to increase, from time to time; for companies, these cartel penalty proceedings at a national and European level present such a high risk. As far as concerned cartel fine procedures, we defend our clients not only through the common economic resources, but also with a profound knowledge of the anti-trust law. The defence generally take place both against the cartel authorities and in the judicial proceedings before the Higher Regional Court. In the context of antitrust penalties, we also take into account possible leniency applications or insolvency proceedings.

Antitrust process management

We represent our clients both before the German cartel authority, as well as before the European Union Courts. In doing so, we are also active in subsequent processes, as well as exceptionally in indemnity proceedings.

Cartel Infringement, control of market misuse

At the core of the antitrust law is the ban on cartels: agreements between companies, decisions by associations of undertaking and coordinated practices, which have as their purpose or effect the prevention, restriction or falsification of competition, are absolutely not allowed (Central Clause of §1 GWB). In this context, the price setting, possible discounting, distribution contracts and distribution systems (including Internet distribution and selective distribution systems) etc. are examined and modified so that no ban on cartel can be allowed: We are also expert representatives in antitrust market abusive practices.

Procurement Law

We are active in all areas of antitrust law, including construction, recycling and disposal, healthcare, transport, IT/telecommunications, utilities and general infrastructure. As far as concerned the above-mentioned topics, we are constantly active in German and European procurement law.

Further topics and services:

• Merger control
• Market dominating positions
• Monopoly rights
• Obligation to contract
• Antidumping
• Ban on cartels
• Fine proceedings
• Ban on cartels procedures
• Competition Law
• Contract review and contract design
• Legal advice and legal examination.