Antitrust Law

Antitrust Law is the law against cartels and other restraints of competition. The basic rules of antitrust law in the EU are set forth in Sections 101 et seqq. of the Treaty on the Functioning of the European Union (TFEU). German antitrust law is mainly governed by the German Act against Restraints of Competition [GWB]. In addition, there are plenty of regulations on a national and on the EU level. The antitrust authorities in charge, i.e. the EC Commission within the EU and the Federal and State Cartel Offices within Germany investigate ex officio with full power to later enforce their decisions against alleged cartels and companies who put unfair restraints on competition. This may mean fines and other burdens for the affected companies. In addition to the cartel authorities, also non-government claimants, i.e. individuals and other companies who claim to be infringed by an alleged cartel may bring forward certain claims. This may mean additional burdens for the alleged cartel in form of looming money damages and injunctions against certain business practices.

We have been advising and defending businesses in all matters of antitrust law for many years, especially in the following areas:

• Fine and Penalty proceedings instituted by cartel authorities
• Court proceedings against fines, penalties and other decisions imposed by cartel authorities
• Defence against claims from non-government claimants in and out of court
• Representation before the European General Court (EGC) and the European Court of Justice (ECJ) against decisions of the EC Commission

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 according to both German and EU antitrust law. European law, however, provides numerous exemption clauses for certain groups of businesses that may legitimate concerted practices. German antitrust law also exempts certain practices from the general cartel ban.

We will analyze beforehand to what extent your business plans and collaborations with other companies would conflict with German and European antitrust law. We will also check whether your plans are covered by a group exemption clause. If necessary or advisable, we will also coordinate your business plans with the cartel authorities. Foresighted planning will in most cases prevent you from potential prohibitions, fines and penalty payments by the authorities.

Whether German or EU law applies regarding merger control depends on the sales figures of the corporations intending to fuse. The merger control in the EU is governed by Council Regulation (EC) No 139/2004 of 20 January 2004. In Germany, mainly Sections 35 et seqq. of the German Act against Restraints of Competition and the German Business Transformation Act apply. Any intended merger needs to be notified either with the EC Commission or the German Federal Cartel Authority in Bonn. No merger may be executed prior to a positive decision of either the EC Commission or the German Federal Cartel Authority. We will be pleased to advise and assist you with realizing your intended merger. In this respect, we closely cooperate with the cartel authorities on your behalf, draft the required documents and also develop the appropriate measures for you to take in order to successfully merge.

Our attorneys will also analyze your business concept in terms of potential conflicts with the German Act against Unfair Competition [UWG]. Please refer to this site for further details: Unfair Competition.

Merging with other companies always has fiscal effects. Our team will be glad to handle upcoming tax issues for you and advise you on the best way how to optimize your company’s taxes.

No matter what field of business you are active in, you will most likely present your company through a website. WINHELLER Attorneys at Law are specialized in analyzing their clients’ websites in regards of potential legal issues and in making them watertight. A merger of two companies may, for instance, involve different imprint obligations or certain data protection issues according to the German Telemedia Act. Please refer to our site Internet – How to make your website legally secure for further information.

Your contact person for all issues related to antitrust law and unfair competition is Atty. Dr. Christian Seyfert. In all matters of tax law, Atty. Stefan Winheller will be your contact person. Please contact us by e-mail (info@winheller.com) or by phone (+49 69 76 75 77 80).