A German Court finds that a horizontal cooperation agreement between small and medium-sized undertakings does not affect trade between Member States under Art. 81 EC as the agreement has no “appreciable” impact on interstate trade (Filigranbetondecken)

I. Background Two small and medium-sized producers of filigree concrete ceilings and other pre-fabricated concrete parts intended to enter into a cartel agreement regarding a cooperation in respect of their sales and distribution activities, including a joint data information system, common sales prices and supply quotas. The cooperation agreement covered a territory in the Northwest of Germany with a radius of 150 km around one of the production facilities. The combined annual turnover of the undertakings concerned is just below 40 million Euro. According to the German Act against Restraints of Competition (ARC), horizontal agreements are exempted from the general prohibition of cartels in Sec. 1 ARC, provided that competition on the relevant market is not substantially affected and