For some time now cartel sinners in Germany have not only been faced with high fines, the persons involved can also face up to five years in prison. The provision on "collusive tendering" defined in Sec. 298 German Criminal Code [Strafgesetzbuch, StGB] punishes restrictions of competition through agreements reached in the context of public bids to the detriment of the public sector (as opposed to individuals). The number of investigative proceedings until very recently has been very moderate, but this has changed in recent times. The Federal Cartel Office [Bundeskartellamt, BKA] has realised that fines are not a sufficient deterrent and is increasingly already cooperating with public prosecutors in ongoing proceedings.
The Federal Cartel Office and the public prosecutor's department investigated jointly for the first time from the very beginning of the proceedings in the "rail track cartel". The public prosecutor's department was involved from the very outset; the interrogation of witnesses and accused persons was conducted jointly before the Federal Cartel Office and the public prosecutor's department. The collaboration has obviously whetted their appetite for more: At the beginning of February this year representatives of the Federal Cartel Office and the regional cartel authorities met up with specialised public prosecutor's departments in Bonn to discuss fundamental issues with each other.
Is this bad news for companies and managers who have to reckon with investigations? By no means. Even if the cumulative power of the state initially looks very threatening – if they can adapt themselves to the cooperation with/of a large number of investigators, they can considerably alleviate the proceedings to their own advantage.
Synergy effects: interrogations are particularly stressful for enterprises, and even more so for the witnesses and accused persons in person. If these interrogations do not have to be conducted twice, but only once in the joint presence of the public prosecutors and cartel officers, then this saves time and money and spares the witnesses and accused persons additional psychological stress.
Effective leniency bonus: Particularly at the start of cartel proceedings, the Federal Cartel Office has a keen interest in obtaining statements from important witnesses, in particular from leniency applicants who can avert fines by giving testimony. German criminal law does not have a leniency policy which corresponds to German and European antitrust law, however. Public prosecutors cannot promise lower penalties just because a party has voluntarily testified, let alone exempt such party from a penalty. It is therefore highly advantageous for the leniency applicant if the Federal Cartel Office significantly determines the investigative proceedings, because it is always anxious to protect its leniency applicants, who are of immense importance to the proceedings.
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