Preisabsprachen

What Is Preisabsprachen?

Preisabsprachen, or price fixing, is an illegal agreement among competing businesses to manipulate prices. This practice falls under the broader umbrella of Wettbewerbsrecht (competition law) and undermines the fundamental principles of a Marktwirtschaft by suppressing genuine Wettbewerb. When companies engage in Preisabsprachen, they typically aim to raise, lower, maintain, or stabilize prices or price levels for their products or services, rather than letting market forces of Angebot und Nachfrage determine them. This often results in inflated costs for Konsumenten and can hinder innovation and economic efficiency⁵⁴, ⁵⁵, ⁵⁶.

History and Origin

The concept of curbing anti-competitive practices like Preisabsprachen has roots in ancient times, with early forms of price controls and prohibitions against market manipulation appearing in various societies. However, modern antitrust laws, specifically targeting private agreements to fix prices, largely originated in the late 19th century in response to the rise of powerful industrial trusts. In the United States, the Sherman Antitrust Act of 1890 was a landmark piece of legislation designed to prohibit agreements that restrained trade, including Preisabsprachen⁵³. This act empowered authorities to take legal action against violators and has since served as a model for competition laws globally⁵². Throughout the 20th century, various jurisdictions enacted and refined laws to combat such illicit Absprachen, recognizing their detrimental effect on fair markets and economic efficiency⁵⁰, ⁵¹.

Key Takeaways

• Illegality: Preisabsprachen are illegal in most jurisdictions under antitrust or competition laws, as they subvert fair market competition.⁴⁸, ⁴⁹
• Forms of Agreement: Price-fixing agreements can be explicit (written or verbal) or inferred from conduct among competitors to raise, lower, maintain, or stabilize prices⁴⁶, ⁴⁷.
• Harm to Consumers: This practice typically leads to higher prices, reduced choices, and stifled innovation for consumers⁴⁴, ⁴⁵.
• Penalties: Companies and individuals found guilty of Preisabsprachen face severe penalties, including substantial fines and imprisonment⁴², ⁴³.
• Economic Impact: Preisabsprachen disrupt the natural equilibrium of Angebot und Nachfrage, leading to economic inefficiencies and misallocation of resources⁴¹.

Interpreting Preisabsprachen

Preisabsprachen are interpreted as a direct attack on the integrity of a competitive market. In an ideal market, each business independently sets its prices based on its costs, desired profit margins, and market dynamics, aiming for Gewinnmaximierung through efficiency and innovation. When companies engage in Preisabsprachen, they bypass this natural process, creating an artificial pricing structure³⁹, ⁴⁰. The detection of Preisabsprachen often involves identifying patterns such as uniform price changes, a sudden narrowing of price ranges, or a lack of price discounting among direct competitors that cannot be explained by legitimate business reasons or market forces³⁷, ³⁸. This coordinated behavior signifies a breakdown of healthy Wettbewerb and a potential instance of Marktmanipulation.

Hypothetical Example

Imagine three major manufacturers, Alpha, Beta, and Gamma, dominate the market for a specific type of industrial adhesive, operating in an Oligopol structure. Historically, they have competed fiercely on price, offering various discounts and promotions to attract customers. However, they are all struggling with thin profit margins.

One day, the CEOs of Alpha, Beta, and Gamma meet secretly at a trade conference. They verbally agree to stop their price wars and instead raise the price of their adhesive by 15% across the board, starting next month. They also agree to standardize their credit terms and reduce their promotional discounts. This illicit agreement constitutes Preisabsprachen.

Subsequently, all three companies announce similar price increases to their clients. Buyers, who previously enjoyed competitive pricing, now face higher costs for a critical component, with fewer options for lower prices or better terms. This coordinated action, designed to increase collective Gewinnmaximierung for the manufacturers, directly harms the buyers by eliminating price competition in the market. If this secret agreement were discovered, the companies would face severe penalties under Antitrust laws.

Practical Applications

Preisabsprachen are a significant concern in various economic sectors, leading to enforcement actions by governmental bodies. For instance, the U.S. Department of Justice actively prosecutes instances of price fixing, bid rigging, and market allocation schemes to ensure fair competition³⁵, ³⁶.

One notable historical case involved the Lysine Price-Fixing Conspiracy in the mid-1990s. Several major international agricultural companies, including Archer Daniels Midland (ADM), colluded to fix the price and allocate sales volume of lysine, an animal feed additive. This international Kartell inflated prices by approximately 70% within nine months. The conspiracy was uncovered partly due to an internal informant and led to significant criminal fines and imprisonment for executives involved, setting a precedent for international cartel prosecution³⁴. The investigation resulted in ADM paying a $100 million criminal fine, a record antitrust penalty at the time³³. Such cases underscore the ongoing vigilance of regulatory bodies in combating Preisabsprachen and protecting the market from Marktversagen.

In contemporary markets, the increasing use of algorithms for pricing decisions has introduced new complexities. Regulatory bodies like the Federal Trade Commission are now examining how reliance on common algorithmic pricing software could facilitate tacit or explicit Preisabsprachen among competitors, potentially leading to new forms of collusion³¹, ³².

Limitations and Criticisms

While generally condemned for their anti-competitive nature, criticisms and limitations regarding the enforcement and interpretation of Preisabsprachen laws exist. Some economic perspectives argue that certain forms of collective pricing, particularly in industries facing severe economic downturns, could stabilize markets and prevent "ruinous competition," ultimately benefiting both producers and consumers by ensuring supply³⁰. However, antitrust laws in many countries, including the United States, typically view horizontal Preisabsprachen (agreements among competitors at the same level of the supply chain) as "per se illegal," meaning no justification is accepted once the agreement is proven²⁸, ²⁹.

A key challenge in prosecuting Preisabsprachen is proving the existence of a collusive "agreement," especially when it's not explicit²⁶, ²⁷. Competitors might exhibit "parallel pricing"—where prices move in sync—due to legitimate market factors, such as similar cost structures, response to common economic signals, or simply monitoring each other's competitive moves. Di²⁴, ²⁵stinguishing between legitimate parallel conduct and illegal collusion requires careful investigation and often relies on circumstantial evidence. Cr²³itics also point out that aggressive Regulierung can sometimes stifle legitimate competitive information exchange or cooperation that might otherwise lead to market efficiencies. Fu²²rthermore, despite severe penalties, detecting and prosecuting Preisabsprachen remains challenging due to their clandestine nature, often requiring insider information or extensive forensic analysis.

#²⁰, ²¹# Preisabsprachen vs. Kartell

While closely related, "Preisabsprachen" (price fixing) and "Kartell" are distinct concepts.

In essence, a Kartell is the collective entity or arrangement, and Preisabsprachen is one of the most common and damaging actions that a cartel undertakes to achieve its anti-competitive goals. A group forms a cartel to exert market power, and price fixing is a direct mechanism for them to do so and maximize collective profits.

#¹⁶, ¹⁷# FAQs

What types of agreements constitute Preisabsprachen?

Preisabsprachen can involve agreements to set minimum or maximum prices, establish uniform discounts, standardize credit terms, or even restrict output to influence prices. Th¹⁴, ¹⁵e agreement doesn't have to be formal or written; it can be a verbal understanding or inferred from a pattern of behavior.

#¹³## Why are Preisabsprachen considered illegal?
Preisabsprachen are illegal because they eliminate healthy Wettbewerb in the marketplace. When competitors agree on prices, consumers lose the benefit of competitive pricing, resulting in higher costs, fewer choices, and reduced innovation. It¹¹, ¹² undermines the efficiency and fairness of the Marktwirtschaft.

What is the difference between horizontal and vertical Preisabsprachen?

Horizontal Preisabsprachen occur between competitors at the same level of the supply chain (e.g., two rival manufacturers agreeing on prices). Ve⁹, ¹⁰rtical Preisabsprachen involve agreements between entities at different levels of the supply chain (e.g., a manufacturer and a retailer agreeing on resale prices). Wh⁷, ⁸ile horizontal price fixing is almost always considered illegal, the legal treatment of vertical price fixing can sometimes vary depending on the jurisdiction and specific circumstances.

How do authorities detect Preisabsprachen?

Detection often relies on whistleblowers or informants, analysis of unusual market behavior (like identical pricing among competitors without clear justification), and detailed forensic investigations. Re⁵, ⁶gulatory bodies like the U.S. Department of Justice's Antitrust Division have dedicated programs to encourage reporting of such violations.

#⁴## Are there any legal situations where prices are fixed or controlled?
Yes, not all price setting or control is illegal. Governments sometimes implement temporary price controls (e.g., during emergencies or wars) to prevent Preistreiberei or manage supply. Ad², ³ditionally, legal entities like joint ventures might have limited scope for price coordination as part of their legitimate collaboration, provided it does not unduly restrain trade in broader markets.¹