Antitrust Law – Merger Control and Competition Law
The Act against Restraints of Competition serves to ensure unimpeded and as diverse competition as possible. This is to ensure free entrepreneurship as well as the formation of a fair price for goods and services. It thus pursues the guiding principle of the social market economy as championed by Ludwig Erhard, in order to create “Prosperity for Everyone“. It is intended to limit the concentration and inappropriate use of market power.
The law intends to achieve this by
- the prohibition and control of certain restrictions of competition (Ban on cartels),
- the prohibition of the abuse of a market-dominating position,
- the control of corporate mergers (Merger Control),
- the Organization and the administrative procedure of the Competition Authorities, especially of the Federal Cartel Office (Bundeskartellamt) as well as
- the Public Procurement Law
These regulations are often influenced and overlaid by EU competition law. This applies in particular to Mergers and restrictions of competition that may affect trade between Member States. Mergers meeting the relevant sales thresholds are subject exclusively to European merger control and not to German merger control.
Merger Control Registrations
In recent years, Dr. Wente has filed merger control notifications with the German Federal Cartel Office, primarily in the area of media concentration; the turnover thresholds triggering a notification obligation are often reached quite early in these cases, since for “the publishing, production and distribution of newspapers, magazines and their components … four times the sales revenues and for the production, distribution and organization of radio programs and the sale of radio advertising time … eight times the sales revenues are to be recognized“, § 38 Abs. 3 GWB. These regulations serve to preserve the diversity of opinion-forming media in the interest of the function of democratic opinion-forming.
Antitrust Prohibition, § 1, 3 GWB
In many different constellations, Dr. Wente also dealt with the prohibition of cartels and the limits of cartel agreements. Most recently, Dr. Wente was involved in a dispute on the question of the extent to which a territorial division using a jointly created trademark violates the ban on cartels if the function of a trademark to identify the origin of a product virtually requires the territorial division.
Trademark law is in natural conflict with competition law because it grants the trademark owner an exclusive right. This exclusive right is a legislatively intended restriction of competition and therefore cannot a priori be anti-competitive. If trademarks are used, for example, to identify directories such as telephone books for specific regions, there is a product-immanent territoriality. According to the so-called. immanence theory, which means that restrictions of competition are “immanent” in certain life situations and thus in the contracts relating to them, restrictions of competition necessarily associated with such types of contracts cannot be anti-competitive. This also applies to territory divisions secured by self-created brands. This was the result of an expert opinion prepared by Dr. Wente in this regard. The Federal Court of Justice came to the same conclusion in the decisions of its Cartel Senate of January 29, 2019 (KZR 4/17) and February 18,.2020 – KZR 17/17.
