Antitrust Law

German and European antitrust law plays a significant role for wording and negotiating contracts, in particular in the field of technology. Ignorance of the complex regulations of antitrust law bears significant risks which are widely underrated: Violating antitrust law may cause a whole contract or central parts of it to become invalid. Often, however, a severability clause carelessly included leads to the validity of the rest of the contract; this, in turn, might result in a remaining contract, for example an R & D agreement, which is economically unviable. Furthermore, there is the risk of substantial damage claims asserted by the other party and fines by the respective antitrust authority.

BARDEHLE PAGENBERG supports you in assessing your contracts from an antitrust perspective, in particular in the field of technology. Antitrust law is of particular importance for R & D, license, distribution and settlement agreements. We assist you in wording new contracts in compliance with antitrust law and in realistically assessing their risks. Besides, it may also be useful to evaluate existing contracts as to their compliance with antitrust law. The rules have changed several times in the last few years. (R & D) agreements which have been concluded in line with antitrust law years ago may meanwhile have become incompatible with antitrust law. 

BARDEHLE PAGENBERG supports you in negotiations which are relevant in terms of antitrust, such as settlement or licensing negotiations between competitors. There are several topics which the parties must not discuss. We draft blacklists for you, listing prohibited topics, and accompany you on-site to negotiations to ensure that problematic topics are not addressed. Moreover, we assist you in assessing under which circumstances market relevant conduct towards distribution partners, competitors, etc. may be considered an abuse of a dominant market position. Among other aspects, we focus on FRAND negotiations in patent infringement proceedings about standard essential patents (SEPs). In this context, there are also various antitrust-specific issues which are of particular importance. We are glad to provide you with solutions to them. An example of such an issue is whether or not several licensees which are willing to take a FRAND license from an SEP holder may exchange FRAND relevant facts out of court.

Our international network also allows us to comprehensively advise our clients regarding worldwide scenarios.