It is possible under certain circumstances according to German and European antitrust law for agreements restricting competition to be permissible if they have a positive impact on the market.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Germany’s Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act Against Restraints of Competition] is a fundamental pillar of antitrust law that is meant to contribute to free and effective competition.
In doing so, it is supposed to prevent practices that restrict competition such as restrictive agreements, exploitation of a dominant market position or merger control. Having said that, it is possible under certain circumstances for anticompetitive behaviour to be permissible if it has a positive impact on market development.
A well-known example of such an exception is the centralized marketing of TV rights for the German Bundesliga. Due to the fact that the Ligaverband (German League Association) and the Deutsche Fußball Liga (DFL) [German Football League] have committed themselves to observing extensive criteria concerning the allocation of media coverage as of the 2017/2018 season, the Bundeskartellamt, Germany’s Federal Cartel Office, let it be known on April 11 that it sees no reason to intervene in the centralized marketing of the rights in question.
By waiving a so-called “Alleinerwerbsverbot” (“no single buyer” rule) and making various other voluntary commitments, the DFL has dispelled key concerns pertaining to antitrust law. Accordingly, it will no longer be possible going forward for a single bidder to acquire the media rights to broadcast all of the live Bundesliga matches. This is meant to ensure that competition is not restricted. In view of the strong position of free-to-air television in Germany and real-time broadcasting, the Bundeskartellamt has yet to impose a strict “no single buyer” rule, something which is already mandatory in other countries.
The Federal Cartel Office also made it clear that the centralized marketing of media rights for the German Bundesliga does in fact constitute a restrictive agreement, and that it can only be exempted from the prohibition on restrictive practices if it results in product improvements for consumers.
Violations of the Gesetz gegen Wettbewerbsbeschränkungen (GWB) or abuse of a dominant market position may be met with severe punishments that entail appropriate sanctions. To prevent this from happening, lawyers who are versed in the field of antitrust law ought to be consulted early on. They can examine whether there are concerns from the perspective of antitrust law and help to overcome any difficulties.
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