Antitrust, Merger Control and Foreign Trade

Antitrust and trade law in Germany: an overview

Antitrust and trade law in Germany covers the rules that govern how companies compete, combine and trade across borders. On the competition side, the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) and Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) prohibit cartels and the abuse of market power, and both the Federal Cartel Office (Bundeskartellamt, FCO) and the European Commission review mergers. On the trade side, the Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG) and its ordinance (AWV), together with EU regulations, govern investment screening, export controls and sanctions, while EU state aid law and the Foreign Subsidies Regulation control public money flowing to companies.

These regimes have different authorities, deadlines and sanctions, but in practice they overlap. A single acquisition by a non-EU investor can require a German or EU merger filing, a foreign investment notification to the Federal Ministry for Economic Affairs and Energy and a notification under the Foreign Subsidies Regulation, each with its own standstill obligation. A supply relationship can raise questions of competition law, sanctions and export licensing at the same time. And a dawn raid or a sanctions investigation is a compliance crisis that also has consequences for damages litigation and public procurement.

This pillar page explains the main areas of antitrust and trade law that matter for companies doing business in Germany, summarises the key thresholds and deadlines, and links to our detailed guides. It is written for general counsel, managing directors, compliance officers and investors who need to understand where regulatory risk lies and how to plan for it.

Competition rules: cartels, abuse and digital markets

The cartel prohibition in § 1 GWB and Article 101 TFEU prohibits agreements and concerted practices between undertakings that restrict competition. Hardcore infringements such as price fixing, market sharing, bid rigging and customer allocation are prosecuted vigorously, but the prohibition also covers vertical restrictions such as resale price maintenance and certain information exchanges. Agreements that generate efficiencies can be exempted if they meet the conditions of § 2 GWB and Article 101(3) TFEU, and block exemption regulations provide safe harbours for vertical agreements, research and development and specialisation agreements.

Dominant companies, and in Germany also companies with relative or superior market power, must not abuse their position (§§ 19 and 20 GWB, Article 102 TFEU). A special regime applies to large digital companies: the FCO can designate an undertaking as having paramount significance for competition across markets and then prohibit specific practices, such as self-preferencing or making the use of services conditional on data processing (§ 19a GWB). At EU level, the Digital Markets Act imposes direct obligations on designated gatekeepers.

The 11th amendment to the GWB of 2023 strengthened the FCO's sector inquiry powers. After publishing the report on a sector inquiry, the FCO can impose remedies where it finds a significant and continuing disruption of competition and other powers appear insufficient and can oblige companies to notify all acquisitions in the sector for three years, subject to domestic turnover thresholds of more than EUR 50 million for the acquirer and EUR 1 million for the target (§ 32f GWB). The former call-in provision in § 39a GWB has been repealed.

Distribution, cooperation and pricing

Much day-to-day antitrust and trade law work concerns ordinary commercial agreements rather than cartels or mergers. Supply and distribution systems are assessed under the Vertical Block Exemption Regulation (EU) 2022/720, which exempts vertical agreements where the market shares of supplier and buyer do not exceed 30% and the agreement contains no hardcore restrictions; it expires on 31 May 2034. Resale price maintenance, restrictions on online sales and certain territorial or customer restrictions remain high-risk, and the FCO has a long track record of enforcement in branded consumer goods, retail and online platforms. Selective distribution, exclusive territories, most-favoured-customer clauses and dual distribution all require careful drafting.

Horizontal cooperation is equally sensitive. Joint purchasing, joint bidding consortia, standardisation, benchmarking and sustainability initiatives can be lawful, but they must be structured so that competitively sensitive information, such as future prices, capacities or bidding intentions, is not exchanged. Trade association meetings need agendas, minutes and, where appropriate, legal attendance. Our guides on distribution and franchise and the insights on information exchange explain the practical rules in more detail.

Merger control and investment screening

German merger control applies where the undertakings concerned had combined worldwide turnover of more than EUR 500 million, at least one of them had domestic turnover of more than EUR 50 million and another more than EUR 17.5 million (§ 35(1) GWB). A transaction-value threshold catches acquisitions with consideration above EUR 400 million where the target has substantial domestic operations. Notifiable concentrations may not be implemented before clearance; the FCO has one month to open an in-depth examination and five months from complete notification to decide (§ 40 GWB). Where the EU Merger Regulation thresholds are met, the European Commission has exclusive jurisdiction.

Foreign investment control is separate from merger control and applies even to minority stakes. Under the current rules, investors from outside the EU and EFTA must notify acquisitions of 10% of the voting rights in companies in the most sensitive sectors, such as critical infrastructure, and of 20% in other listed technology sectors (§ 56 AWV), and the ministry can review other acquisitions of 25% or more on its own initiative. Defence and certain security-related targets are screened for acquisitions by any foreign investor. Notifiable transactions are provisionally ineffective until clearance.

The screening framework is about to be rebuilt. On 22 October 2026 the Federal Ministry for Economic Affairs and Energy published a draft Investment Screening Act (Investitionsprüfungsgesetz, IPG) and a companion ordinance, which would move the rules out of the AWG and AWV into a dedicated statute and incorporate the revised EU Screening Regulation (EU) 2026/1386, applicable from 17 January 2028; the consultation with the federal states and associations ran until 12 November 2026, according to the ministry's announcement. Until a new law is adopted, the AWG and AWV continue to apply.

Cartel investigations and antitrust damages

Cartel investigations in Germany typically begin with a leniency application, a complaint, a whistleblower tip or market monitoring, and often with unannounced inspections at business premises and private homes. The FCO can fine undertakings up to 10% of their total worldwide turnover in the business year preceding the decision (§ 81c(2) GWB) and individuals up to EUR 1 million; bid rigging is also a criminal offence under § 298 of the Criminal Code. Leniency, settlements and an effective compliance programme can significantly reduce fines, and fines above a certain level lead to an entry in the federal competition register, which public contracting authorities must consult.

Cartel fines are often only the beginning. Customers and suppliers harmed by a cartel can claim antitrust damages: infringers must compensate the resulting harm (§ 33a GWB), a cartel is rebuttably presumed to cause harm, final decisions of competition authorities bind the civil courts as to the infringement, and claimants have disclosure rights. Claims become time-barred after five years from knowledge, subject to suspension during authority proceedings. Germany has become one of the main European venues for such claims, with specialised chambers at the regional courts and claims frequently bundled through assignment models.

Export controls, sanctions and foreign trade

Export control and sanctions law determines which goods, software and technology may be exported, to whom, and which business partners are off limits. Exports of listed dual-use items require a licence from the Federal Office for Economic Affairs and Export Control (BAFA) under the EU Dual-Use Regulation, and catch-all clauses extend controls to unlisted items intended for sensitive end uses. EU sanctions against Russia and Belarus, adopted in successive packages since 2022, prohibit a wide range of exports, imports, services and financial transactions and require exporters of certain goods to include "no Russia" clauses in their contracts.

Intentional sanctions breaches are criminal offences under the AWG, and companies can face fines of up to EUR 40 million for certain intentional sanctions offences. At the same time, German law encourages self-detection: negligent administrative offences that a company discovers through its own controls, reports voluntarily and remedies are not prosecuted. US secondary sanctions and the EU Blocking Statute add a further layer for companies with US business, US-dollar payments or US-origin goods. Tariffs, trade defence measures and the EU's new trade instruments complete the picture for companies with global supply chains.

State aid and foreign subsidies

EU state aid and FSR rules apply when companies receive public support. Under Article 107(1) TFEU, aid granted by a member state that distorts competition and affects trade is incompatible with the internal market unless it is exempted or approved. Most German funding programmes are designed under the General Block Exemption Regulation (GBER) or approved schemes, and recipients must check that the conditions are met because unlawful aid must be repaid with interest; the Commission's recovery powers are subject to a ten-year limitation period.

State aid has become central to the energy transition and industrial policy in Germany. Funding for hydrogen, decarbonisation of industrial processes, battery and semiconductor production, and grid and heat infrastructure is typically granted under the Commission's guidelines on climate, environmental protection and energy aid, under approved schemes or as Important Projects of Common European Interest.

The GBER is currently being revised: according to the Commission, a draft was consulted on from 25 February to 23 April 2026, and adoption of the new regulation is planned for the end of 2026. For companies, the decisive questions in antitrust and trade law terms are whether a measure is aid at all, which exemption or approval covers it, and how the conditions and clawback provisions in the funding decision allocate risk.

The Foreign Subsidies Regulation (EU) 2022/2560 (FSR) addresses the reverse situation: subsidies granted by non-EU states to companies active in the EU. Concentrations must be notified where the target, a merging party or a joint venture is established in the EU with EU turnover of at least EUR 500 million and the parties received combined financial contributions from third countries of more than EUR 50 million in the previous three years (Article 20(3) FSR). In public procurement, notification is required for tenders with an estimated value of at least EUR 250 million where the bidder received at least EUR 4 million per third country. The Commission can also open ex officio reviews.

Managing antitrust and trade law risk

The table summarises the main filing triggers and review periods. Each regime has exceptions and calculation rules, so the figures are a starting point for analysis, not a substitute for it.

Antitrust and trade compliance in practice

Companies reduce antitrust and trade law risk through targeted compliance work: risk assessments for sales and purchasing teams, rules for contacts with competitors and trade associations, documented processes for distribution and pricing policies, merger control and screening checklists for the deal team, export classification and sanctions screening, and a clear protocol for dawn raids and authority requests. German law gives this work direct legal relevance. Under § 81d GWB the FCO considers pre-existing and post-infringement compliance measures when setting fines, and management that fails to supervise can be fined under § 130 of the Administrative Offences Act. Our compliance management systems page explains how to build a programme that meets these expectations.

A risk-based approach works best. A manufacturer with a dense dealer network will focus on pricing and online sales; a company that bids for public contracts on bid rigging and consortia; an exporter of machinery on classification, end-use checks and Russia-related diversion risk; and a private equity investor on filing analysis across its portfolio. Antitrust and trade law compliance should also be connected to the whistleblowing system under the Whistleblower Protection Act, since many cartel and sanctions cases begin with an internal report.

Authorities, courts and judicial review

Decisions in antitrust and trade law matters can be challenged in court, and the routes differ by regime. Appeals against FCO decisions in administrative proceedings, including merger prohibitions, go to the Higher Regional Court (Oberlandesgericht) responsible for the seat of the authority, which for the FCO in Bonn is Düsseldorf, with a further appeal on points of law to the Federal Court of Justice (BGH) if admitted (§ 73 GWB). Decisions under § 19a GWB go straight to the BGH as the first and last instance.

In fine proceedings, the company files an objection and the Higher Regional Court then hears the case in full; the court is not bound by the fine set by the authority and can, in a judgment, impose a higher one. Investment screening decisions of the ministry and export licence refusals by BAFA are reviewed by the administrative courts, and Commission decisions under EU merger control, state aid law and the FSR by the EU General Court and the Court of Justice.

How TRW & Co helps

We advise companies, investors and boards on antitrust and trade law in Germany and the EU. We assess merger control, foreign investment and FSR filing requirements and run the filings with the FCO, the European Commission and the Federal Ministry for Economic Affairs and Energy. We represent companies in cartel and abuse investigations, prepare leniency and settlement strategies, and act for claimants and defendants in damages litigation. We classify goods, apply for BAFA licences, design sanctions and export control programmes and handle voluntary disclosures. We also structure funding under state aid rules and advise on FSR exposure in tenders. To discuss a matter, please contact us.