The question
What may competitors do together, and which rules govern the competition in which every cooperation takes place?
In brief
Competition law rests on two pillars. The law against unfair competition (UWG) ensures that businesses compete fairly; antitrust law (the German Competition Act (GWB) and Article 101 TFEU) ensures that they compete at all. Cooperation between competitors is permitted as long as it does not appreciably restrict competition, or its benefits outweigh the restriction and reach customers. Agreements between competitors on prices, quantities, customers or territories, by contrast, are prohibited in principle as hardcore restrictions. The parties must assess for themselves whether their cooperation is lawful, because there is no procedure for notifying an authority.
The law
Competition as a shared order
At first sight competition is the opposite of cooperation. At second sight it presupposes cooperation: the recognition of shared rules without which rivalry would become a fight without limits. Competition law sets down those rules.
The UWG protects competitors, consumers and other market participants against unfair commercial practices, and at the same time the public interest in undistorted competition (Section 1(1) UWG). Among other things it prohibits misleading practices (Section 5 UWG), aggressive practices (Section 4a UWG), disparaging competitors (Section 4 no. 1 UWG) and deliberately obstructing them (Section 4 no. 4 UWG). These prohibitions can be read as duties of mutual regard between rivals: those in competition need not spare one another, but must recognise one another as participants in the market.
The UWG is enforced mainly by those involved. Competitors, trade associations and qualified entities can seek injunctions (Section 8 UWG). In this way the competitors themselves guard the rules that bind them all.
The cartel prohibition
Agreements between undertakings that have as their object or effect the restriction of competition are prohibited (Section 1 GWB). Where they may affect trade between member states, Article 101(1) TFEU applies as well. Prohibited agreements are void (Article 101(2) TFEU), and fines of up to ten per cent of worldwide turnover may be imposed.
Agreements are exempt from the prohibition if they produce efficiencies, allow consumers a fair share of the benefit, contain only indispensable restrictions and do not eliminate competition (Article 101(3) TFEU, Section 2(1) GWB). There is no notification procedure. The undertakings must assess for themselves whether their cooperation meets these conditions. Small and medium-sized enterprises have a specific exemption for cooperation that rationalises economic processes (Section 3 GWB). Where there is a substantial legal and economic interest, undertakings can ask the Federal Cartel Office for a decision that it will not act against a cooperation with competitors (Section 32c(4) GWB).
Guidelines and block exemptions
In 2023 the European Commission published new guidelines on horizontal cooperation agreements (OJ C 259, 21 July 2023, p. 1). They cover research and development, production, purchasing, commercialisation, information exchange, standardisation and, for the first time in a chapter of its own, sustainability agreements.
Two regulations exempt certain categories of agreement across the board, each from 1 July 2023 to 30 June 2035. Regulation (EU) 2023/1066 covers research and development up to a combined market share of 25 per cent, Regulation (EU) 2023/1067 specialisation up to 20 per cent. Through Section 2(2) GWB they also apply to purely German cases.
Typical cooperations
Information exchange. Exchanging competitively sensitive information, for example on future prices, quantities or strategies, can in itself be a prohibited restriction. Historical, aggregated or public data raise fewer concerns. Where sensitive information is needed for a cooperation, separate teams bound to confidentiality help.
Consortia for a single contract (Arbeitsgemeinschaften). Undertakings that take on a contract together do not restrict competition if none of them could take it on alone. According to the Federal Court of Justice (BGH) it is enough that bidding independently would not be economically expedient and commercially sensible (order of 13 December 1983, KRB 3/83). The 2023 guidelines deal expressly with bidding consortia for the first time.
Purchasing cooperations. Joint purchasing often strengthens smaller firms. According to the guidelines, there are generally no concerns where the combined share on the purchasing and selling markets is below 15 per cent in each case. Buyer cartels remain prohibited: competitors coordinating their purchase prices without jointly dealing with suppliers.
Sustainability cooperations. Many agreements pursuing environmental and social goals do not restrict competition at all. For joint sustainability standards the guidelines provide a “soft safe harbour”. Appreciable negative effects on competition are then considered unlikely where, among other things, participation is open, no one is compelled and the combined market share does not exceed 20 per cent or no appreciable price increase is to be expected.
Online
Cooperation online touches antitrust law at particular points.
Data cooperations. Pooling data with competitors, for benchmarking or training models, is an exchange of information. What matters is which data, who has access and whether the results reveal the market conduct of individual participants. Open, non-discriminatory access and clear boundaries between raw data and results are the core of a lawful design.
Shared tools. Where competitors use the same pricing tool or a platform that pools their data, an exchange through a third party can arise even if they never talk to each other directly. The guidelines address such constellations expressly.
Platforms. Large platforms are also subject to special rules: the Digital Markets Act for gatekeepers (Regulation (EU) 2022/1925) and, in Germany, Section 19a GWB for undertakings of paramount significance for competition across markets.
Shared channels. Where competitors work together online in associations or networks, channels and chats are places where too much is easily said. A clear agenda and the awareness that written words remain protect better than any prohibition.
For fair-trading law, what applies on site applies online. Some prohibitions have become particularly important online, such as the ban on fake reviews (Annex to Section 3(3) UWG).
Relevant phases
- Finding partners: who is a competitor, and what may not be exchanged even in early talks?
- Designing the cooperation: self-assessment of the cooperation.
- Agreeing the cooperation: confidentiality, separate teams, market share limits.
- Carrying out the cooperation: information flows day to day.
Read on: The cooperation agreement · Franchising and distribution · Data and rights
Limits of this overview
This page gives an overview. Merger control, vertical agreements, abuse control and sector-specific law are not covered or only touched on, and every antitrust assessment depends on market definition in the individual case.
As at 30 September 2026