Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Since the 2005 reform, German law has treated horizontal agreements and vertical restrictions in the same way. Prior to the 2005 reform, vertical restraints were not considered void in principle and were only subject to control where they were clearly shown to be abusive. In its most recent version, Section 1 GWB repeats word for word the content of Article 101(1) TFEU, excluding the condition per …

The prohibition

Since the 2005 reform, German law has treated horizontal agreements and vertical restrictions in the same way. Prior to the 2005 reform, vertical restraints were not considered void in principle and were only subject to control where they were clearly shown to be abusive. In its most recent version, Section 1 GWB repeats word for word the content of Article 101(1) TFEU, excluding the condition pertaining to trade between Member States. Thus, all horizontal and vertical agreements, regardless of whether or not they affect trade between Member States, are caught by the same prohibition, which is identical to the Article 101(1) TFEU prohibition. Under Section 1 GWB, agreements between competing undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition are prohibited. The most serious restrictions amongst those referred to in Section 1 GWB, are agreements on price-fixing, production quotas and the sharing of customers or markets. Also included are resale price maintenance and information exchanges between competitors. Pursuant to Article 134 of the Civil Code, agreements leading to a violation of Article 19 are considered void and without effect.

In interpreting the scope of the prohibition in Section 1, the German courts have applied a de minimis test requiring an appreciable effect on competition for the prohibition to be triggered (spürbare Marktbeeinflussung). In this regard, the courts generally consider that if the total market share of the undertakings participating in a cartel is less than 5%, there is no appreciable effect on competition. The 2005 reform introduced the de minimis rule into the law. Section 3 GWB provides that Section 2(1) exemption (see below) applies specifically to horizontal agreements between competitors and to decisions of associations of undertakings which have as their object rationalization through cooperation, do not in any essential way affect competition on the market and improve the competitive ability of small or medium-sized undertakings.

The former law contained a list of specific exemptions in Sections 2-8 of the GWB, notably for specialization and rationalization agreements. The 2005 law repealed this list. The former law also had a more general rule providing for exemptions under Section 7, the criteria of which was similar to Article 101(3) TFEU. The 2005 law replaced Section 7 by new Section 2(1) which takes up verbatim the conditions for exemption generally accepted under Article 101(3) TFEU. Section 2(1) GWB now provides: “agreements between undertakings, decisions by associations of undertakings or concerted practices, which, while allowing consumers a fair share of the resulting benefit, contribute to improving the production or distribution of goods or to promoting technical or economic progress, and which do not 1) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives, or 2) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question, shall be exempted from the prohibition of Section 1.” The former law made the exemption subject to a notification to the Federal Cartel Office (Bundeskartellamt) and in certain cases an authorization from that body. However, coming into line with Regulation No 1/2003, the 2005 law completely renounced the system of notification to and authorization from the authorities and established the legal exception system.

In addition, Section 2(2) GWB makes the European block exemption regulations expressly applicable in national law, even in cases where the agreements at issue do not affect trade between Member States: Regulations of the Council or the Commission of the European Union on the application of Article 101(3) TFEU to certain categories of agreements, decisions by associations of undertakings and concerted practices (block exemption regulations), apply mutatis mutandis.

As part of the German hospital reform, the Act adopted by the German Parliament on 11 December  2024, introduced an exemption from national merger control for certain hospital mergers under Article 187(10) of the German Competition Act (GWB). This provision aims to facilitate structural consolidation in the healthcare sector while ensuring continuity of care.

To qualify for the exemption, transactions must:

-involve a functional integration of hospital services across different sites;

-be completed no later than 31 December 2030;

-receive written confirmation from the competent regional health authority, certifying that the merger improves hospital care and does not contravene competition rules based on available information.

The confirmation process requires prior public disclosure of the merger request on the authority’s website. The confirmation may not be issued before one month has elapsed and must be provided within two months of the request; otherwise, the standard obligation to notify the Cartel Office applies.

The exemption does not apply to purely financial acquisitions without functional integration. While the reform strengthens regional planning powers, concerns have been raised that limiting the Authority's oversight could reduce competition and diversity among healthcare providers in the long term.

Global Competition Law

305. The prohibition

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Les notions juridiques connexes

305. The prohibition

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise