Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Cartels
3.
Investigations – general
3.1
On what grounds may the enforcement authorities commence an investigation?
Germany

Answer ... The Federal Cartel Office (FCO) may obtain indications of anti-competitive conduct through third-party complaints, a leniency application by one of the companies involved or anonymous whistleblowing. Apart from that, the FCO may also commence an investigation based on information in the public domain, such as press reports suggesting potential anti-competitive conduct.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.2
What investigatory powers do the enforcement authorities have in conducting their investigation?
Germany

Answer ... The FCO may generally collect any evidence. It may carry out unannounced searches of business premises and residential premises. In this context, it may seize physical and electronic documents. It also has the right to ‘image’ computer hard drives using forensic IT tools. As a general rule, such investigative measures require a search warrant by a judge. Further, the FCO may interview individuals; however, interviewees may refuse to answer questions to the extent that they might incriminate themselves.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.3
To what extent may the enforcement authorities cooperate with their counterparts in other jurisdictions during their investigation? How common is such cooperation in practice?
Germany

Answer ... The FCO may cooperate with and exchange information with competition authorities in other jurisdictions during its investigation. Such cooperation during a cartel investigation naturally becomes particularly relevant in the case of worldwide cartels which are investigated in parallel in different jurisdictions. Within the European Competition Network, an exchange with other member state competition authorities and the European Commission is also particularly relevant when it comes to determining allocation of a case to the competition authority that is best placed to investigate.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.4
Is there an opportunity for third parties to participate in the investigation?
Germany

Answer ... If an investigation is initiated based on a third-party complaint, the complainant has a limited right to be heard and limited rights to access the file.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.5
What are the general rights and obligations of the enforcement authorities during the investigation?
Germany
As mentioned, the FCO has a broad range of investigative powers to gather information and evidence regarding anti-competitive conduct. During the investigation, the FCO must observe the fundamental rights of defence of the undertakings and individuals concerned. In case of a statement of objections by the FCO, the target company must be given access to the file and the opportunity to comment on the allegations.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.6
What are the general rights and obligations of the target company during the investigation?
Germany

Answer ... During the investigation, the target company and the individuals concerned are protected by fundamental rights of defence. Individuals therefore need not respond to any questions asked by FCO officials if they have personally been accused of a violation of the competition rules or if the answer would expose themselves or a family member to the risk of criminal prosecution or prosecution for an administrative offence. The fundamental rights of defence also include the right to legal advice and to appoint a legal representative. Moreover, the investigatory powers are strictly limited to the object of the investigation. Officials are therefore not allowed to exceed this limitation (eg, by searching files which do not fall within the object of the investigation).

Companies are obliged to provide company-specific and market-specific information – in particular, information on company turnover. This requirement is meant to put the FCO in a position to calculate antitrust fines.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.7
What principles of attorney-client privilege apply during a cartel investigation?
Germany

Answer ... The concept of legal privilege in Germany is not as broad as that under the EU rules. External counsel advice kept at the premises of the undertaking under investigation is protected by legal privilege only if the communication specifically relates to the ongoing investigation (defence correspondence) and was created after the formal initiation of proceedings relating to the conduct under investigation.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
3.8
Are details of the investigation publicly announced? If so, what principles of confidentiality apply?
Germany

Answer ... If the FCO concludes that there has been an infringement of competition law, but does not impose a fine, the complete decision of the FCO will be published on the FCO’s website in non-confidential version, as well as a case report summarising the key aspects of the case. Fining decisions in hard-core cartel cases are not published. However, the FCO will generally publish press releases and case reports which describe the case in some detail.

For more information about this answer please contact: Mathias Stöcker from Shearman & Sterling LLP
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Cartels