This article first appeared in the second edition of The International Comparative Legal Guide to: Cartels & Leniency; published by Global Legal Group Ltd, London www.iclg.co.uk
1 The Legislative Framework of the Cartel Prohibition
1.1 What is the legal basis and general nature of the cartel prohibition, e.g. is it civil and/or criminal?
The legal basis for cartel enforcement in Germany is the Act against Restrictions of Competition (ARC). Section 1 ARC corresponds to article 81(1) of the EC Treaty and broadly prohibits agreements or concerted practices between undertakings that have as their object or effect the prevention, restriction or distortion of competition. The substantive law - which applies both to companies and individuals - can be enforced by the Bundeskartellamt (Federal Cartel Office, FCO) on the basis of two different proceedings. Minor infringements which only require a cease and desist order are dealt with in an administrative process which is governed by the ARC. However, where the authority intends to impose fines, the proceedings are governed by the Code on Administrative Offences (Ordnungswidrigkeitengesetz) and the Code on Criminal Procedure (Strafprozessordnung).
1.2 What are the specific substantive provisions for the cartel prohibition?
Practices that are prohibited under section 1 ARC include price fixing, bid rigging, allocation of customers, quotas or territories, limiting production or distribution and the exchange of sensitive market data (e.g., prices).
1.3 Who enforces the cartel prohibition?
The cartel prohibition is enforced primarily by the FCO in Bonn. The authority has 11 independent divisions that are responsible for different industry sectors and product markets. Infringements with regional effects are dealt with by the State Cartel Offices (Landeskartellbehörden) only. However, the majority of cartel cases are dealt with by the FCO, which is in charge both of the investigation of potential violations and the enforcement of the cartel prohibition.
For the purpose of enforcing the cartel prohibition, the Bundeskartellamt has set up a special unit for combating cartels (SKK) to help it increase the number of secret cartel agreements it uncovers, and to speed up its investigations and proceedings. The SKK's task is to assist the relevant divisions in the FCO in uncovering cartel agreements by deploying specialised personnel. Since June 2005, the FCO's 11th division has concentrated exclusively on the enforcement of the ban on cartels, assisted by the SKK.
1.4 What are the basic procedural steps between the opening of an investigation and the imposition of sanctions?
Where the FCO discovers anti-competitive conduct (through thirdparty complaints or a leniency application by one of the companies involved), it normally gathers further information and evidence regarding the infringement. To collect this further information and evidence, the FCO has a broad range of investigative powers, which are described in more detail below.
Once the FCO has completed its fact finding, it will issue a statement of objections setting out the underlying facts of the case, the alleged infringements and the FCO's legal assessment. Around the same time, the targets of the FCO's investigation will be given access to the FCO's file and have the opportunity to comment on the allegations.
The final step in the process is the adoption of a formal decision by the FCO. In administrative proceedings, a non-confidential version of the decision will be published on the FCO website (www.bundeskartellamt.de ), whereas fining decisions adopted under the Code on Administrative Offences are not normally published.
1.5 Are there any sector-specific offences or exemptions?
Section 1 ARC does not apply to certain restrictions of competition in the agricultural sector and to resale price maintenance in the magazines and newspaper sector.
1.6 Is cartel conduct outside Germany covered by the prohibition?
Cartel conduct outside of Germany is covered by the prohibition insofar as the conduct has appreciable effects in Germany. The FCO has a tendency to interpret this rule broadly and asserts jurisdiction even in cases with little or indirect effects in Germany. Agreements made in Germany with effects only outside of Germany are not covered, although export cartels may under certain conditions have at least potential effects in Germany and may therefore be covered by the prohibition.
2 Investigative Powers
2.1 Summary of general investigatory powers.
Table of General Investigatory Powers
Please Note: * indicates that the investigatory measure requires the authorisation by a Court or another body independent of the competition authority.
2.2 Specific or unusual features of the investigatory powers referred to in the summary table. The investigatory powers described under question 2.1 above exclusively relate to companies and individuals who are the subject of the FCO's investigations. To the extent they are obliged to cooperate, they are not under an obligation to produce documents or to respond to questions which would expose them to the risk of prosecution.
Third parties are not obliged to produce documents in administrative proceedings, whereas they have to produce documents or information in criminal proceedings. Compulsory interviews with third parties are possible both in administrative and criminal proceedings. However, third parties can withhold documents and do not have to respond to questions which would expose them or a member of their family to the risk of prosecution.
2.3 Are there general surveillance powers (e.g. bugging)?
Competition authorities do not have general surveillance powers. Bugging is restricted to severe criminal offences and the cartel prohibition does not fall into this category.
2.4 Are there any other significant powers of investigation?
There are no other powers of investigation beyond those listed under question 2.1 above.
2.5 Who will carry out searches of business and/or residential premises and will they wait for legal advisors to arrive?
The searches are carried out by FCO officials, who are often accompanied by police staff and IT experts to support the FCO officials in their searches. The FCO will normally be prepared to wait for approximately 30 minutes for external legal counsel to arrive before starting the inspection.
2.6 Is in-house legal advice protected by the rules of privilege?
In-house legal advice is not protected by the German rules of privilege. It should be noted that the concept of legal privilege in Germany is not as broad as under the EU rules. External counsel admin kept at the premises of the undertaking under investigation is only protected by legal privilege if the communication specifically relates to the ongoing investigation (defence correspondence) and was created after the initiation of proceedings relating to the conduct under investigation.
2.7 Other material limitations of the investigatory powers to safeguard the rights of defence of companies and/or individuals under investigation.
During the investigation, the company and the individuals concerned are, of course, protected by fundamental rights of defence. Individuals, therefore, do not have to respond to any questions asked by FCO officials if they have been accused of a violation of the competition rules or if the answer would expose them or a member of their family to the risk of criminal prosecution or prosecution under the Code on Administrative Offences. The fundamental rights of defence also include the right to legal advice.
2.8 Are there sanctions for the obstruction of investigations? If so, have these ever been used?
The FCO can impose fines if formal requests for information are not answered, answered incorrectly or misleadingly or not answered within the time limit set. The same applies if formal requests for documents are not complied with or complied with late or incompletely. Fines can also be imposed where dawn raids or other investigatory measures are obstructed. So far, the FCO has not used these powers in cartel investigations.
3 Sanctions on Companies and Individuals
3.1 What are the sanctions for companies?
Similar to Article 23(2) Regulation 1/2003, fines can be imposed on companies up to a maximum amount of 10 per cent of worldwide turnover in the last completed business year. This calculation has replaced the previous method of fining up to three times the proceeds gained from the infringement. However, in determining the amount of the fine, the FCO can still take into account the proceeds gained from the infringement.
In order to establish a minimum level of legal certainty, the FCO published fining guidelines in September 2006 which are similar to the European Commission's fining guidelines. The FCO uses a two-step procedure to calculate fines. First, it determines a basic amount which will then be adjusted in a second step. Depending on the gravity of the infringement, the basic amount will represent up to 30 per cent of the turnover achieved during and from the infringement. The turnover achieved from the infringement is the domestic turnover achieved by the undertaking concerned with the products or services connected with the infringement. In the case of price-fixing and quota cartels and other severe horizontal restrictions of competition, the basic amount is generally set in the upper range of the maximum possible basic amount. The basic amount can in a second step be increased in order to achieve a sufficient level of deterrence or to take into account aggravating circumstances. However, it can also be lowered if there are attenuating circumstances. In any event, the fine is capped at 10 per cent of the company's worldwide turnover. There are no additional sanctions on companies (e.g., no blacklisting from bidding for government contracts or similar measures).
3.2 What are the sanctions for individuals?
The level of fines for individuals has been increased by the Seventh Amendment from €500,000 to €1 million for participation in severe infringements (i.e. hard-core cartel activity such as price fixing, bid rigging, allocation of quotas, customers or territories) and from €25,000 to €100,000 for less severe infringements.
It should be noted that German law generally does not provide for criminal sanctions for violations of the ARC. The notable exception to this rule is section 298 of the German Criminal Code, which provides for a prison sentence of up to five years for bid rigging in tender proceedings. According to a recent Federal Supreme Court decision, bid rigging could, depending on the circumstances of the individual case, also be regarded as a special form of fraud (prison sentence of up to five years). If the FCO discovers cases involving bid rigging, it must refer the proceedings against individuals to the public prosecutor. The corresponding proceedings against companies stay with the FCO.
There are no additional sanctions on individuals (e.g., director disqualification).
3.3 What are the applicable limitation periods?
The statute of limitation is generally five years for severe infringements and three years for less severe infringements. However, investigatory measures undertaken by the FCO, the European Commission or competition authorities of other Member States will suspend the limitation period.
3.4 Can a company pay the legal costs and/or financial penalties imposed on a former or current employee?
Yes, companies frequently cover the legal costs and fines imposed on company employees or directors (including former employees and directors).
4 Leniency for Companies
4.1 Is there a leniency programme for companies? If so, please provide brief details.
In order to provide companies engaged in cartel activity with an incentive to end their involvement and to inform the FCO about the infringement, the FCO introduced a leniency programme in 2000, which was revised in 2006. The revised programme largely reflects the European Commission's 2002 leniency notice. However, due to the liability of individuals, the FCO's leniency programme is available both to companies and individuals.
According to the FCO's revised leniency programme, companies involved in an illegal agreement can be entirely or partly exempted from a fine if they make a decisive contribution to uncovering a cartel and cease their anti-competitive behaviour.
In particular, a fine will not be imposed if the offender:
- is the first applicant to contact the FCO before it has sufficient evidence to obtain a search warrant;
- provides the FCO with verbal and written information and, where available, evidence that enables it to obtain a search warrant;
- was not the only ringleader of the cartel nor did it coerce others to participate in the cartel; and
- cooperates fully and on a continuous basis with the FCO.
At the point at which it is in a position to obtain a search warrant, the FCO will still grant a cartel participant immunity from a fine if it:
- is the first applicant to contact the FCO before it has sufficient evidence to prove the offence;
- provides the FCO with verbal and written information and, where available, evidence which enables it to prove the offence;
- was not the only ringleader of the cartel nor did it coerce others to participate in the cartel; and
- cooperates fully and on a continuous basis with the FCO.
Even where the conditions for full immunity are not fulfilled, the fine may also be reduced if the offender makes a significant contribution to proving the offence by voluntarily revealing its knowledge and discontinues its participation in the cartel. To the extent that the above conditions are fulfilled, they will be taken into account by the FCO in setting the amount of the fine.
The submission of all relevant documents, together with an explanation of the information given will be deemed to help contribute to detection. Undertakings are also expected to encourage their members of staff to cooperate. Individuals from a particular company will not be subject to individual fines if the company immediately and unreservedly cooperates with the FCO and contributes to uncovering cartel activity.
It should be noted that the FCO's leniency programme has no effect on civil antitrust litigation or on criminal investigations conducted by the public prosecution. Whistleblowers can therefore still be subject to damage claims and individuals could face criminal prosecution where the case at hand involves bid rigging.
4.2 Is there a 'marker' system and, if so, what is required to obtain a marker?
The revised 2006 leniency programme introduced a marker system, under which applicants can place a marker with the FCO by declaring their willingness to cooperate. The timing of the placement of the marker is decisive for the status of the application to obtain a marker certain basic information about the cartel needs to be provided. After having placed the marker, the applicant will be set a time limit of up to eight weeks for the submission of a complete leniency application.
The FCO will confirm immediately that a marker has been placed and that the application has been received. Once the application has been filed and the requirements for immunity are satisfied, the FCO will assure the applicant in writing that he will be granted conditional immunity.
4.3 Can applications be made orally (to minimise any subsequent disclosure risks in the context of civil damages follow-on litigation)?
Marker placements and leniency applications can be made orally. The FCO accepts marker placements and leniency applications in English, provided that the parties submit a convenience translation shortly afterwards.
4.4 To what extent will a leniency application be treated confidentially and for how long?
According to the FCO, cooperation with the authority can, in principle, be treated as confidential. In particular, the authority is committed to protect the identity of a 'whistleblower' to the extent that this is possible. Disclosure in the fining decision is not an issue since decisions are company-specific. However, there are certain limits to this as the other cartel members will necessarily have access to the non-confidential part of the FCO's file once a statement of objections is issued and could, in certain cases, be able to draw conclusions from the content of the file. In addition, where the FCO has no other evidence, it may have to rely on the testimony of the whistleblower and will have to disclose this evidence to the other companies.
4.5 At what point does the 'continuous cooperation' requirement cease to apply?
The applicant is required to cooperate with the FCO throughout the entire duration of the proceedings, i.e. until a formal decision has been adopted. The obligation on the applicant to keep his cooperation with the FCO confidential applies until the FCO relieves the applicant of this obligation (normally after dawn raids have been conducted).
4.6 Is there a 'leniency plus' or 'penalty plus' policy?
There is no 'leniency plus' or 'penalty plus' policy in Germany.
5 Whistle-blowing Procedures for Individuals
5.1 Are there procedures for individuals to report cartel conduct independently of their employer? If so, please specify.
Leniency applications can be made independently of their employers. However, there is no need for a separate application by an individual if the company has applied for leniency since the application of a company automatically covers all of its employees involved in the reported conduct. However, an independent leniency application by an employee can compromise the position of its employer since the employer can at best come in second with its application (with the consequence that immunity is no longer available). There are no financial rewards to incentivise whistleblowing by individuals.
6 Plea Bargaining Arrangements
6.1 Are there any early resolution, settlement or plea bargaining procedures (other than leniency)?
There are no formal settlement or plea bargaining procedures outside of the leniency process. However, the FCO has in the past rewarded parties for not contesting facts and not appealing fining decisions with lower fines. None of these informal arrangements has so far been tested by an appeal.
7 Appeal Process
7.1 What is the appeal process?
The FCO's decisions are subject to appeal to the Higher Regional Court (Oberlandesgericht) in Düsseldorf. Afurther appeal against the decision of the Higher Regional Court is only permitted on questions of law to the Federal Supreme Court (Bundesgerichtshof).
7.2 Does the appeal process allow for the cross-examination of witnesses?
German procedural rules do not allow for a cross-examination of witnesses.
8 Damages Actions
8.1 What are the procedures for civil damages actions for loss suffered as a result of cartel conduct?
Under German procedural law, designated courts have jurisdiction to rule on damages actions for the compensation of loss suffered as a result of cartel conduct.
Legal basis for damages actions
Damages claims are based on section 33 ARC. In addition, claims for damages may under certain circumstances be based on section 8 and section 9 respectively of the German Act against Unfair Competition. A further legal basis can be found in general tort law, section 823 et seq. of the German Civil Code.
Potential claimants and passing-on defence
Potential claimants are both direct (e.g. wholesaler of cartelised goods) and indirect parties (e.g. end-distributors or end-customers of cartelised goods) affected by the respective cartel agreement. In case a directly affected party claims damages the question arises as to whether the so-called passing-on defence is admissible. According to the German legislator, the passing-on defence is not excluded as such. However, the defendant cannot rely on the mere allegation that the direct purchaser has managed to pass on the cartel damage to the next trader or the consumer. Rather, the calculation of damages has to be based on the principle of Vorteilsausgleichung ("adjustment of damages by benefits received"). As a result, this leads to a reversal of the burden of proof, i.e., the party in breach of competition law has to provide full evidence that the purchaser of goods or services managed to reduce its loss by passing on the excessive prices to its own customers. In addition, even if the defendant is able to demonstrate that the purchaser passed on the excessive purchase price, the passing-on defence is not available if it leads to an unjustified benefit for the defendant.
Burden of proof
In principle, the claimant has to demonstrate and provide evidence for the facts forming the basis of the competition law infringement as well as of the loss incurred. However, the claimant may benefit from a shift in the burden of proof in certain situations.
Binding effect of decisions taken by competition authorities
To compensate the difficulties a potential claimant might have in demonstrating the facts of a competition law infringement, German competition law provides for far reaching binding effect of decisions adopted by competition authorities. Final decisions adopted by the German Federal Cartel Office, the European Commission or by competition authorities of other EU Member States have a binding effect on the German civil courts both regarding facts and liability. The intention of this provision is to facilitate private follow-on actions, as national courts will not take further evidence on the competition law infringement after a final formal decision has been made by a European competition authority.
Estimation of the loss incurred by the competent cartel courts
In relation to the amount of loss incurred by the claimant, the standard of proof is considerably reduced. According to section 287 Civil Procedure Code, the court responsible for the case can estimate whether and if so how much loss the claimant has suffered. It is only necessary that the claimant provides a reliable factual basis for such an estimate. In cartel cases, the court can in particular base its estimate concerning the amount of loss incurred on the basis of the profits earned by the defendants through the illegal cartel activities.
Even though there is no discovery proceeding as such, German law provides for various possibilities to gain access to the information necessary to found a damages claim. In particular, potential claimants can access the records of the FCO in accordance with Section 406 (e) of the German Code of Criminal Procedure. The specific aim of this right to access records is to enable victims of cartel conduct to substantiate potential damages claims.
8.2 Do your procedural rules allow for class-action or representative claims?
German civil procedure law does not provide for a class action lawsuit in competition law matters. However, customers can submit damages claims via third parties. In relation to the cement cartel which has been fined by the FCO in April 2003, the Regional Court of Düsseldorf recently admitted a damages claim which was submitted by the Belgian company Cartel Damages Claims S.A. (CDC). The Court accepted that the cartel victims could assign their individual claims to CDC which can now seek to enforce the respective claims on its own behalf. However, the decision of the Court has not become final and binding yet.
8.3 What are the applicable limitation periods?
Statute of limitation for damages actions is 3 years from the point in time when the claimant is aware of the defendant's infringement. However, according to Section 33(5) of the ARC, the statute of limitation is suspended as soon as the FCO institutes proceedings based on an infringement of the ARC or Articles 81 and 82 of the EC Treaty. The same applies if the European Commission or the competition authority of another Member State initiates proceedings based on Articles 81 or 82 of the EC Treaty. The relevant suspensions expire six months after termination of such proceedings (e.g., by a decision).
8.4 What are the cost rules for civil damages follow-on claims in cartel cases?
The claimant will have to make an advance payment to cover the costs of the proceedings (including court fees and the defendant's counsel fees) and ultimately, costs will have to be borne by the losing party (although the opponent's legal fees will only have to be borne in the amount of the statutory legal fees (which are usually lower than actual agreed fees).
8.5 Have there been any successful follow-on or stand alone civil damages claims for cartel conduct?
The Regional Court of Dortmund has ordered the participants of the vitamins cartel to pay compensation for damages suffered by purchasers of the cartelised vitamins. However, a final and binding decision of a German High Court or the German Federal Supreme Court on private antitrust damages actions is still outstanding.
9.1 Provide brief details of significant recent or imminent statutory or other developments in the field of cartels and leniency.
Nothing to report.
9.2 Please mention any other issues of particular interest in Germany not covered by the above.
Nothing to report.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.