29. Jun 17

GRP Rainer Rechtsanwälte: Experience in antitrust law – 9th amendment to the GWB

Antitrust law is not something that merely concerns large corporations. It also affects small and medium-sized businesses. Violations of antitrust law can be met with severe penalties.

In March, the Bundestag and Bundesrat, Germany’s lower and upper houses of parliament, passed the 9th amendment to the Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act Against Restraints of Competition]. We at the commercial law firm GRP Rainer Rechtsanwälte note that this entails a tightening of the rules in the fields of competition law and antitrust law, as the changes make it easier for those who have been aggrieved by cartel arrangements to assert claims for damages. On the other hand, it also means that businesses which infringe antitrust law will be faced with a greater risk.

The 9th amendment to the GWB is designed to implement the EU Directive on Damages in EU Cartel Cases. One focus of the amendment is to adapt competition law to the digital age. Because it is not uncommon, especially in this field, for market concentration or abuse of a dominant market position to occur, control of mergers and abusive practices will be bolstered by the competition authorities.

An equally important point is that parties who have suffered loss due to a cartel will be able to more easily enforce claims for damages. In the event of a cartel infringement, the competition watchdog can administer the cartel members with a fine and the aggrieved parties can, as the case may be, sue for damages. That being said, they have to demonstrate the fact that and the extent to which they have suffered losses as a result of the cartel. There will now be a legal presumption that loss has been suffered due to the infringement. This presumption needs to be rebutted by the cartelists, thus the burden of proof has shifted. Furthermore, the victims will enjoy more comprehensive rights in relation to the submission of the relevant documents.

Another key point is that it is now also possible for the parent company or its legal successor to be held liable for infringements of antitrust law committed by its subsidiaries. This is meant to prevent companies from evading liability by restructuring within a group.

But antitrust law is not only aimed at large companies. Small and medium-sized businesses must also be increasingly careful not to violate antitrust law, as this can prove to be expensive. Lawyers who are experienced in the field of antitrust law can provide companies with pre-emptive advice and, of course, also assist in enforcing or fending off damages claims.

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