A German Court finds that a cartel agreement causing a coordination of prices can affect competition substantially even if the involved undertakings have a combined market share of less than 10% (Nord-KS/Xella)

Background The following case deals with different concepts of “substantiality” and “appreciability” as part of the criterions “restriction of competition” and “effect on inter-state trade”. According to the European competition rules as well as to the German Act against Restraints of Competition (ACR), horizontal agreements are exempted from the general prohibition of cartels in Art. 81(1) EC and Sec. 1 ARC, if competition on the relevant market is not substantially affected. In addition, the application of European competition law requires that an agreement in terms of Art. 81(1) EC affects the trade between Member States and has an appreciable impact on inter-state trade. The mere possibility of an effect on trade is not sufficient for an agreement to be caught by Art. 81(1) EC. The

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Kerstin Faber, A German Court finds that a cartel agreement causing a coordination of prices can affect competition substantially even if the involved undertakings have a combined market share of less than 10% (Nord-KS/Xella), 20 June 2007, e-Competitions Effect on interstate trade, Art. N° 16328

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