Again and again, SMEs and trading firms agree on fixed prices, e.g. for tenders. Agreements or “coordinated action” among market participants is always delicate from the point of view of antitrust law per se. The German Cartel Act (KG) explicitly prohibits agreements which (a) eliminate or b) unlawfully restrict competition (Art. 5 KG).

Agreements include price fixing, but also other agreements that have an influence on competition (means of production, etc.). A gentlemen’s agreement can also be an agreement; in other words, a legally binding contract need not necessarily exist. It is not relevant whether an undertaking has a dominant market position. The elimination of competition occurs, inter alia, when the majority of market participants participate in the agreement. An agreement which does not specifically eliminate competition is inadmissible if it significantly restricts competition.

It is a fact that the practice of the authorities and courts has been significantly tightened in recent years (see GABA decision, BGE 2C-180/2014). As a rule, a price-fixing agreement should always be regarded as sisgnificant because the price is an important parameter of competition (see BK-KG, Art. 5, para. 192 with reference to BGE 129 II 18).

Micro-enterprises can enter into agreements irrespective of their market share, provided there are no so-called black clauses. Agreements may also be admissible under certain circumstances if they serve to increase economic efficiency . Apart from pricing agreements, other forms of coordination may also be relevant under antitrust law, e.g. territorial agreements, etc. Our experts will be happy to advise you.