Cartel or Restrictive Practices Law
German cartel law is one of the fields which are covered by German competition law in general. Amongst other things it also includes legislation concerning rules of fair trading and legal regulations such as, for instance, the Unfair Competition Act. It is the very objective of these fair trading and cartel laws to ensure and enforce fair practices of competition, it having to be noted that the pertinent terminology is not always consistent. In so far fair trading law focuses on the question whether competition practices which apparently work properly when taken by themselves may nevertheless imply the use of methods which are undesirable („unfair“). Cartel law, on the other hand, is to be attributed an overriding importance. Thus the provisions of cartel law are the basis for evaluating and finding an answer to the question whether entrepreneurial activities are of such a nature that they will allow for competition to begin with. This goes especially for the case groups of cartel agreements, of abuse of a dominant market position or the field of merger control. Modern German cartel law is largely based on European law. The core provisions of European cartel law are constituted by Article 101 and Article 102 of the EC Treaty (AEUV). These provisions were and still are the basis for yet further secondary national legislation which has been enacted under Community law. These laws are also applicable and governing in the field of merger control and include the Merger Control Regulation as well as the important Code of Procedure 1/2003 which vests extensive powers in the European Commission, thus enabling the Commission to detect cases of non-compliance with rules on competition and to sanction the same by way of administrative fines. Moreover so-called block exemption regulations provide for a detailed definition and specification of what is permitted and what is not permitted in cases of competition which are to be verified and judged under the aspects of cartel law. In this context it must be noted and emphasized that the EC Treaty and the above-mentioned Regulations which were enacted in line with the EC Treaty do constitute directly applicable law. Cartels which are of no significance for international commercial relations and activities which are going on between the EC member states, are judged in line with German cartel law, i.e. the German Act against Restraints of Competition The field of application of the latter Act thus covers the abuse of market power and the restraint of competitive behaviors of independent market operators within the territory of the Federal Republic of Germany. In this context it must also be noted that it is not only private companies but also public contract-placing entities which have to comply with these rules of competition. In so far Section 97 and the following Sections of the German Act against Restraints of Competition define the underlying rules which have to be complied with in connection with contract-awarding procedures that also have to be followed by public contract-placing authorities such as regional or local authorities and legal entities under public law.