GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
that have as their object or effect the prevention, restriction or distortion of competition. The defi - nition is the same under Article 101 of the TFEU, albeit with an additional EU dimension. According to the FCO′s Leniency Notice, cartels are specifically defined as “agreements on the fixing of prices or sales quotas, market sharing and bid rigging” . Section 33a(2) of the ARC explicitly contains a legal definition of the notion of a cartel. Accord - ing to this provision, a cartel is an agreement or concerted practice between two or more com - petitors aimed at co-ordinating their competi - tive behaviour on the market or influencing the relevant parameters of competition. Such agree - ments or concerted practices include: • the fixing or co-ordination of purchase or sell - ing prices or other trading conditions; • the allocation of production or sales quotas; • the allocation of markets and customers, including bid rigging and the restriction of imports or exports; or • anti-competitive actions against other com - petitors. This narrower definition, which does not include any form of vertical agreements, covers impor - tant examples of prohibited cartel behaviour; however, it is somewhat misleading in the gen - eral context of antitrust enforcement. It is limited in its scope of application as it only refers to the provisions on cartel damage claims and, specifi - cally, to the burden of proof. For the public and private enforcement of anti- competitive behaviour, only the broader defini - tion of Section 1 of the ARC is relevant. Other conduct, such as the exchange of competition-
sensitive information, can be classified as cartel behaviour and can entail significant fines. Efficiency Defence and Exemptions As is the case with EU law, certain restrictive co-operation agreements or concerted practic - es between competitors may be exempt from the prohibition if they lead to efficiencies that benefit consumers (Section 2 of the ARC) – eg, common purchase or common marketing. The FCO has also increasingly been dealing with a number of co-operations and initiatives focusing on sustainability. In this respect, the FCO has emphasised its willingness to take sustainability goals into account when assessing co-operative arrangements between competitors. For SMEs, the conditions precedent for such an exemption are lower (Section 3 of the ARC). The undertakings are responsible for assessing whether or not a practice is exempt from Sec - tion 1 of the ARC (ie, so-called self-assessment). The FCO can issue no-action letters (Section 32c of the ARC). However, it is generally not obliged to do so and only has to respond to a request within six months in certain cases if there is sig - nificant legal and economic interest. There are some general exemptions from the prohibition of cartels under Section 1 of the ARC for agricultural producers (Section 28 of the ARC), publishers (Section 30 of the ARC), and public water suppliers (Section 31 of the ARC). 1.5 Limitation Periods The limitation period for the imposition of admin - istrative fines for cartel conduct is five years from the termination of the infringement (Section 81g ARC and Section 31 (3) of the OWiG). However, investigations by the FCO or other competition authorities (including the EC) lead to an interrup -
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