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
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
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.
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.
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