Vanderbilt Journal of Transnational Law


Joachim Zekoll

First Page



This Article examines conflicts between the European Community (EC or Community) competition rules and the corresponding laws of the Federal Republic of Germany in three case categories. Professor Zekoll first discusses situations in which corporate practices or agreements violate EC law, but are considered legal under German law. He then analyzes frictions that may arise when both EC and German laws are violated. In both of these case categories, Community law prevails over conflicting solutions under German law. However, considerable doubt exists about the primacy of Community law with respect to the third category involving practices that violate German law, but are allowed under the Community competition rules. According to the traditional "two-barrier theory" espoused by most German courts, corporate activity must be lawful under both national and EC law in order to be allowed. Since both legal regimes are regarded as regulating different spheres of economic activity, no conflict between the systems can occur. As a result, under this approach, prohibitive German law always should take priority over permissive Community rules.

The author takes the view that tensions may arise between prohibitive national competition rules and permissive Community law, and that, as a rule, the latter should prevail. He differentiates, however, between the devices on which the EC Commission relies in its decision to permit a practice or agreement. The so-called "comfort letters" and "negative clearances" declaring an agreement not to be in violation of EC rules cannot create a conflict with national law, and thus do not preclude the application of national prohibitions. However, individual and group exemptions issued by the Commission to allow certain agreements merit a different treatment. These exemptions reflect policy concerns of the Community that may be thwarted if contrary national law is applied. While German courts are reluctant to attribute any independent importance to Community exemptions, the Commission, followed by a strong majority within the academic discussion, endorses the principle of the primacy of these permissive EC rules. Professor Zekoll concludes that this principle does not mandate a blanket rejection of prohibitive national rules. Instead, a case-by-case evaluation of the true scope of Community exemptions and the underlying interests reveals that the application of national restrictions to a particular practice frequently will not frustrate the Community's objectives.