1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions apply to cartels in your jurisdiction?
The legal basis for cartel enforcement in Germany is the Act against Restraints of Competition (ARC). Section 1 of ARC corresponds to Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and broadly prohibits agreements or concerted practices between undertakings that have as their object or effect the prevention, restriction or distortion of competition.
1.2 Do any special regimes apply to cartels in specific sectors?
Section 1 of the ARC does not apply to certain restrictions of competition in the agricultural sector or in the water supply sector, or to resale price maintenance in the magazine and newspaper sector.
Moreover, there is an exemption from Section 1 of the ARC for publishing cooperations between newspaper or magazine publishers, to the extent that such agreements enable the parties to strengthen their economic base for intermedia competition. Since the exemption relates only to Section 1 of the ARC, and not to Article 101(1) TFEU, it does not apply to cooperations which may affect trade between EU member states. As such, the exemption relates primarily to small and medium-sized publishing houses.
The relevant exemption relates to agreements on publishing cooperations between newspaper and magazine publishing houses; it does not apply to editorial cooperations. Moreover, as the Federal Cartel Office (FCO) pointed out in a report on a fine decision against a publishing house in 2018 (DuMont/Bonner Generalanzeiger), it takes the view that any hard-core restrictions such as pure price or territorial cartels remain prohibited. The FCO has stressed that the purpose of the exemption is not to eliminate competition, but rather to enhance plurality of the press by strengthening competition between newspaper and magazine publishing houses and other media, in particular pure online media.
1.3 Which authorities are responsible for enforcing the cartel legislation?
The cartel prohibition is enforced primarily by the FCO in Bonn. The authority has nine independent divisions which are responsible for different industry sectors and product markets. Additionally, the FCO has three divisions which focus exclusively on the enforcement of the cartel prohibition, as well as a special unit for combating cartels, which provides technical assistance to the special cartel divisions.
Infringements with regional effects are dealt with by the state cartel offices. However, most cartel cases are dealt with by the FCO, which is in charge of both investigating potential violations and enforcing the cartel prohibition.
In cases of bid rigging, the state prosecutor can open proceedings against individuals on the basis of the German Criminal Code.
1.4 How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?
The FCO is very active in investigating and taking action against cartels. In 2018, the FCO imposed fines in cartel proceedings totalling approximately €380 million on 22 companies or trade associations and 20 individuals. The sectors concerned included special steel manufacturers, potato producers, newspaper publishers and producers of rolled asphalt. The FCO carried out seven dawn raids at a total of 51 companies.
2 Definitions and scope of application
2.1 How is a ‘cartel' defined in the cartel legislation?
Cartels comprise agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition.
2.2 What specific offences are defined in the cartel legislation?
Practices that are prohibited under Section 1 of the Act against Restraints of Competition (ARC) include:
- horizontal agreements, such as fixing prices or terms and conditions, allocating markets (territory, customers or quotas), bid rigging or exchanging sensitive market data (eg, prices); and
- vertical agreements, such as resale price maintenance.
2.3 Is liability under the cartel legislation civil, criminal or both?
German law generally does not provide for criminal sanctions for violations of the ARC, except for 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 Federal Court of Justice decision, depending on the circumstances of the individual case, bid rigging could also be regarded as a particular form of fraud (warranting a prison sentence of up to five years).
2.4 Can both individuals and companies be prosecuted under the cartel legislation?
Yes. Directors, officers and certain senior employees can be prosecuted for personal involvement in a cartel infringement. Further, directors and officers can be prosecuted for breaching their duty of supervision with respect to subordinate employees who are personally involved in a cartel infringement.
2.5 Can foreign companies be prosecuted under the cartel legislation?
Yes. Cartel conduct outside of Germany is covered by the cartel prohibition insofar as it has an appreciable effect in Germany. The Federal Cartel Office (FCO) tends to interpret this rule broadly and asserts jurisdiction even in cases with little or only indirect effect on Germany.
2.6 Does the cartel legislation have extraterritorial reach?
Yes. If a restriction of competition has appreciable effects in Germany, the cartel legislation applies, even if a restrictive agreement was concluded outside Germany and the place of business of the undertakings concerned is outside Germany.
2.7 What is the statute of limitations to prosecute cartel offences in your jurisdiction?
In general, serious infringements become time barred five years after termination of the infringement, whereas less serious infringements become time barred three years after termination of the infringement.
However, investigations by the FCO, the European Commission or competition authorities of other EU member states will suspend the limitation period.
That said, infringements become definitively time barred at the end of the double statutory limitation period if by then there is no final fine decision or first-instance court decision, if a fine decision is appealed.
3 Investigations – general
3.1 On what grounds may the enforcement authorities commence an investigation?
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.
3.2 What investigatory powers do the enforcement authorities have in conducting their investigation?
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.
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?
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.
3.4 Is there an opportunity for third parties to participate in the investigation?
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.
3.5 What are the general rights and obligations of the enforcement authorities during the investigation?
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.
3.6 What are the general rights and obligations of the target company during the investigation?
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.
3.7 What principles of attorney-client privilege apply during a cartel investigation?
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.
3.8 Are details of the investigation publicly announced? If so, what principles of confidentiality apply?
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.
4 Investigations – step by step
4.1 What initial steps do the enforcement authorities take to commence a cartel investigation?
Other than through ex officio investigations, the Federal Cartel Office (FCO) may become aware of indications of anti-competitive conduct through third-party complaints, leniency applications by companies involved or anonymous whistleblowing. Prior to initiating a formal investigation and conducting dawn raids, the FCO will seek to verify and confirm in particular information it receives through leniency applications or from anonymous whistleblowers through follow-up questions and meetings with representatives of leniency applicants. If the FCO concludes that there are sufficient indications of anti-competitive conduct, it will within its discretion initiate a formal investigation, which normally starts with a dawn raid.
4.2 Are dawn raids commonly conducted in your jurisdiction? If so, what are the pre-conditions for conducting a dawn raid? When, where and by whom are they conducted? Do the enforcement authorities have the power to search private as well as company premises?
Dawn raids in cartel investigations are very common. As a general rule, dawn raids must be ordered by a judge. The FCO may carry out dawn raids of business premises and residential premises. Searches are conducted by FCO officials who, as a general rule, are accompanied by police staff and IT experts to support the FCO officials in their searches.
4.3 What powers do officers have during the dawn raid? Are there any limitations on these powers?
FCO officials may seize physical and electronic documents. They also have the right to ‘image' computer hard drives using forensic IT tools. However, the investigatory powers are strictly limited to the object of the investigation. For example, officials cannot search files which do not fall within the object of the investigation.
4.4 What are the rights and obligations of the target company and any individuals targeted during a dawn raid?
During the investigation, the FCO must, as mentioned, observe the fundamental rights of defence of the undertakings and individuals concerned. While searches by FCO officials during a dawn raid must not be disturbed, suspects are not obliged to submit documents or answer questions. FCO officials need not await the arrival of external legal counsel, but will normally be prepared to wait for approximately 30 to 60 minutes for external legal counsel to arrive before starting the inspection.
4.5 What evidence can be seized during a dawn raid? Do the enforcement authorities have the power to interview witnesses and take statements during a dawn raid?
During a dawn raid, FCO officials may seize physical and electronic documents. They also have the right to ‘image' computer hard drives using forensic IT tools. Further, they may interview individuals; however, interviewees may refuse to answer questions to the extent that they might incriminate themselves.
4.6 How can a company best prepare itself for dawn raids? What best practices should it follow in the event of a dawn raid?
A company can best prepare itself for dawn raids if key representatives familiarise themselves with guidelines for such an event, which can be provided by external legal counsel. A further preparation is to conduct a mock dawn raid in which external lawyers play the role of public officials.
In case of a real dawn raid, management should immediately inform external legal counsel and ask the FCO officials conducting the dawn raid to wait until external legal counsel have arrived before conducting searches. While there is no general obligation to cooperate with the FCO in the case of a dawn raid, a company would normally be well advised not to delay searches at its premises by refusing to provide certain technical or logistical information which will eventually come to be known by the officials anyway – for example, where the server room and offices of certain individuals are located at the premises of the company.
4.7 What are the next steps in the cartel investigation following a dawn raid? What timeframe do these typically follow?
Following a dawn raid, the FCO will review and analyse at its premises physical and electronic documents seized during the dawn raid. If the FCO ‘imaged' computer hard drives during the dawn raid, it will pursue electronic searches of such copies of hard drives. Companies and undertakings concerned do not have the right to be present through representatives during these follow-up investigative steps at the premises of the FCO.
Following review and analysis of the documents collected during the dawn raids and other sources of information, including (additional) leniency applications filed after the dawn raids, the FCO will decide on the infringements, if any, for which sufficient evidence is available. On that basis, the FCO will draft a statement of objections.
Review and analysis of the material collected during a dawn raid, as well as drafting of the statement of objections, will normally take a considerable amount of time. There is no statutory obligation of the FCO to issue a statement of objections or a final decision within a specific timeframe after the start of an investigation. However, the FCO must take into account the risk that an infringement may become time barred after a certain period.
4.8 What factors will the enforcement authorities consider in assessing whether cartel activity has taken place?
The FCO will assess all available information and evidence to conclude whether there is sufficient proof, including circumstantial evidence, that cartel activity has taken place. In this context, the FCO will pay particular attention to any contemporaneous documents such as emails, handwritten notes, calendar entries and so on. Further, the FCO will assess the credibility of written and oral statements by leniency applicants, cross-checking such statements against statements by other leniency applicants and other undertakings concerned, as well as contemporaneous documents.
4.9 In case of a finding of cartel activity, can the company seek to negotiate a settlement, plea bargain or similar resolution? If so, what is the process for doing so?
Unlike the European Commission, the FCO does not have formal settlement or plea bargaining procedures outside of the leniency process. However, the FCO has adopted informal settlement rules and the termination of cartel proceedings by way of settlement has become the rule. The FCO has set out the basic principles of its informal settlement procedure in its "Information Leaflet on the settlement procedure used by the FCO in fine proceedings" (current version of February 2016), which is available on the FCO's website (www.bundeskartellamt.de). The main characteristics are that the companies concerned confess their participation in the anti-competitive conduct and accept the fine imposed by way of a settlement declaration. Such declaration is considered by the FCO as a mitigating circumstance, leading to a reduction in fine in the form of a settlement discount of up to 10%. While the settlement does not include a waiver to file an appeal, negotiated decisions imposing fines are usually not appealed. Half of these settlements are so-called ‘hybrid' settlements, where a settlement is agreed with some of the companies concerned, whereas the remaining companies refuse to settle and go through the normal proceedings. Settlements are regularly used by the companies concerned in cases where leniency is no longer available to the parties.
5.1 Is a leniency programme in place in your jurisdiction? If so, how does this function?
In order to provide companies engaged in cartel activity with an incentive to end their involvement and to inform the Federal Cartel Office (FCO) of the infringement, the FCO introduced a leniency programme in 2000, which was revised in 2006. The current 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 to individuals.
According to the FCO's 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.
Even where the conditions for full immunity are not fulfilled, the fine may be reduced if the offender discontinues its participation in the cartel and makes a significant contribution to proving the offence by voluntarily revealing its knowledge. The FCO will take such conditions into account when setting the amount of the fine.
The FCO's leniency programme has no effect on civil cartel damages claims or on criminal investigations conducted by the public prosecutor. Whistleblowers can therefore still be subject to follow-on damages claims and individuals could face criminal prosecution where the case involves bid rigging.
5.2 What are the benefits of applying for leniency, both for the first mover and for subsequent applicants?
According to the FCO's 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 or proving a cartel and cease their anti-competitive behaviour. The first mover will escape any fine, provided that the requirements under the leniency programme – including full and continuous cooperation with the FCO – are met. Subsequent applicants will benefit from a reduction in the fine that would otherwise have been imposed, of up to 50%. The FCO will determine the amount of the reduction based on the value of the contributions to uncovering the illegal agreement and the sequence of the applications.
5.3 What steps does a leniency application involve? What timeframe do these typically follow?
In practice, a leniency application will often start with the placement of a marker because the applicant company, having internally detected indications of involvement in a cartel, may not immediately be in a position to submit the full set of information and documentation required under the leniency programme, but may wish to secure the status of first mover or second/third etc applicant. Under the marker system, 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 and the marker must contain basic information on the cartel. After placement of the marker, the FCO will give the applicant a timeframe of up to eight weeks to submit a complete leniency application.
5.4 What are the rights and obligations of the applicant during the leniency application and over the course of its cooperation with the enforcement authorities?
A leniency applicant must submit a leniency application that meets the requirements under the leniency programme for immunity or a reduction in fine. Further, leniency applicants must cooperate with the FCO fully and on a continuous basis. In this context, a leniency applicant must end its involvement in the cartel immediately on request by the FCO. Moreover, the applicant is obliged to keep its cooperation with the FCO confidential until the FCO relieves it of this obligation, normally after the search has been concluded.
5.5 Is the leniency programme open to individuals? Can employees or former employees benefit from a leniency application filed by their employer? Do the authorities operate a programme for individual whistleblowers separate to the leniency programme?
Due to the liability of individuals for cartel law infringements, the FCO's leniency programme is available to both companies and individuals.
Leniency applications can be made by individuals independently of their employers. However, there is no need for a separate application by an individual if the company has applied for leniency. The application for leniency of a company automatically covers all employees involved in the reported conduct.
In 2012 the FCO established an anonymous online whistleblowing system accessible through its website (www.bundeskartellamt.de) which allows the FCO to receive anonymous tip-offs of cartel law infringements.
5.6 Can leniency be denied or revoked? If so, on what grounds?
A first mover will be denied immunity from a fine if it was the only ringleader of the cartel or if it coerced others to participate in the cartel. Further, the requirements for leniency are not met if the applicant fails to cooperate fully and on a continuous basis with the FCO.
6 Penalties and sanctions
6.1 What penalties may be imposed in criminal proceedings on companies? What penalties may be imposed on individuals?
There is no criminal liability of companies under German law.
German law generally does not provide for criminal sanctions for cartel conduct against individuals, except for 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 Federal Court of Justice decision, depending on the circumstances of the individual case, bid rigging could also be regarded as a particular form of fraud (warranting a prison sentence of up to five years). If the Federal Cartel Office (FCO) discovers cases involving bid rigging, it must refer the proceedings against individuals to the state prosecutor. The corresponding proceedings against companies stay with the FCO.
There are no additional sanctions for individuals (eg, director disqualification).
6.2 What penalties may be imposed in civil proceedings on companies? What penalties may be imposed on individuals?
Fines can be imposed on companies up to a maximum of 10% of worldwide turnover in the last full business year. Unlike at the EU level, this 10% threshold is interpreted by the Federal Court of Justice and consequently also by the FCO as the upper limit of any fine, not as a cap on an otherwise unlimited fine. The FCO can also take into account the proceeds gained from the infringement when determining the level of the fine.
The level of fines for individuals amounts to up to €1 million for participation in serious infringements (ie, hard-core cartel activity such as price fixing, bid rigging, allocation of quotas, customers or territories) and up to €100,000 for less serious infringements.
6.3 How are penalties in cartel cases determined? In deciding on the applicable penalties, will the enforcement authorities consider penalties imposed in other jurisdictions?
As mentioned, the upper limit of the framework of fines for serious intentional cartel administrative offences amounts to 10% of the total turnover achieved in the business year preceding the authority's decision. For negligent offences, the maximum fine amounts to 5% of the total turnover achieved.
Within this statutory framework, the FCO determines the amount of a fine based on the affected turnover, taking into account aggravating and mitigating factors. The methodology applied by the FCO is set out in its Fining Guidelines, which are available on its website (www.bundeskartellamt.de).
Importantly, the Dusseldorf Higher Regional Court, which is the court of appeal for fine decisions of the FCO, is not bound by and does not apply the methodology for the calculation of fines according to the FCO Fining Guidelines. As a result, the court will determine the amount of the fine in cartel cases on appeal within its sole discretion, irrespective of the affected turnover, taking into account the 10% threshold as the upper limit of the fine framework.
The practical consequence is that undertakings which appeal a fine decision of the FCO run a considerable risk that the fine imposed by the FCO will eventually be (significantly) increased on appeal, even if the appeal is partially successful with respect to some infringements determined by the FCO in its fine decision.
The FCO may, within its discretion, consider penalties imposed in other jurisdictions, but is not obliged to do so. It will not normally consider such penalties if they specifically relate to the effects of a cartel within the territory of such jurisdictions.
6.4 Can a defendant company pay the legal costs incurred by and/or penalties imposed on its employees?
In the past, companies have frequently covered the legal costs and fines imposed on company employees or directors (including former employees and directors). However, this has been viewed more critically in recent years and, in addition to potential tax implications, it may well be possible that courts will prohibit such conduct in the future.
7.1 Can the defendant company appeal the enforcement authorities' decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and to which reviewing authority? What is the standard of review applied by the reviewing authority (eg, limited to errors of law or a full review of all facts and evidence)?
Fine decisions of the Federal Cartel Office (FCO) can be appealed to the Dusseldorf Higher Regional Court. The court conducts a full review of all facts and evidence. Appeal decisions of the Dusseldorf Higher Regional Court may be appealed to the Federal Court of Justice if the Dusseldorf Higher Regional Court grants leave to appeal. A refusal to grant leave to appeal may be appealed to the Federal Court of Justice. A review of the appeal decision by the Federal Court of Justice is limited to errors of law.
7.2 Can third parties appeal the enforcement authorities' decision, and if so, in what circumstances?
Decisions of the FCO in cases concerning cartel law infringements may be appealed only by the parties to the proceedings before the FCO. In such cases, the parties to the proceedings before the FCO are primarily the undertakings against which the proceedings are directed. Unless third parties whose interests will be substantially affected by the FCO decision have been admitted by the FCO upon their application to the proceedings, they are not parties to the proceedings before the FCO and cannot appeal the FCO decision.
8 Private enforcement
8.1 Are private enforcement actions against cartels available in your jurisdiction? If so, where can they be brought?
Yes, private enforcement actions against cartels are available in Germany. Exclusive competence for private enforcement actions seeking damages for cartel law infringements is assigned to the regional courts. Under general procedural rules, the locally competent regional court is generally the regional court at the place of business of the defendant. Within the districts of the various regional courts in a given German state, the competence for private enforcement actions against cartels is referred by way of an ordinance to one or several particular regional court(s) within the state.
8.2 Can private enforcement actions be brought against both companies and individuals?
Yes, since both companies and individuals may be held liable for cartel law infringements.
8.3 Are class actions or other forms of collective action available in your jurisdiction?
Collective proceedings or class actions are not available. However, customers can submit damages claims via third parties by assigning their claims to them. This is of particular interest for smaller companies that would not otherwise have the financial resources to enforce their legal rights through litigation, as well as for larger companies facing a significant absolute cost risk in case of high amounts of damage claims.
If cartel damage claims are assigned to a third party which brings the claims through a vehicle that has been founded solely to claim customers' damages on its own behalf, it must be ensured that such vehicle is properly funded. Otherwise, courts will consider the claim to be contra bonos mores (immoral) and void, as a major part of the procedural risk is shifted to the defendant, thereby circumventing the defendant's legal rights.
Following legislative measures to promote private competition law enforcement, today there is considerable activity in the German market of litigation law firms cooperating with process financiers. Several cases are pending before German courts which involve numerous damages claims bundled by way of assignment to the claimant.
8.4 What process do private enforcement actions follow?
Private enforcement actions start with the filing of the statement of claim with the competent regional court. Subsequently, there will be a few rounds of exchange of written pleadings. The court may hear witnesses and assess documents. Further, the court will often commission an expert opinion from an economic expert on the amount of damage incurred by the claimant as a result of the cartel infringement. If it is established to the conviction of the court that the claimant incurred damage in the amount sought by the action, it will grant the claimant a respective amount. Otherwise, the action will be entirely or partially dismissed. In order to avoid partial dismissal of an enforcement action, the claimant may choose to bring initially only an action for a declaratory judgment.
8.5 What types of relief may be sought and what types of relief are most commonly awarded? How is the relief awarded determined?
In case of cartel infringements, claimants may seek compensation of actual damages caused by the infringement, as well as necessary legal expenses and appropriate fees of economic experts. The amount of actual damages incurred by a claimant is often determined based on an expert opinion from an economic expert commissioned by the court.
8.6 Can the decision in a private enforcement action be appealed? If so, to which reviewing authority?
Yes, a judgment of the competent regional court in a private enforcement action can be appealed to the competent higher regional court.
9 Trends and predictions
9.1 How would you describe the current cartel enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
While the Federal Cartel Office has always been quite active in the area of public enforcement, private damages actions have become increasingly frequent only in recent years. Following legislative measures to promote private competition law enforcement, today there is considerable activity in the German market of litigation law firms cooperating with process financiers. Several cases are pending before the German courts which involve numerous damages claims bundled by way of assignment to the claimant.
While a proposal by the government for amendments to the Act against Restraints of Competition is expected in the foreseeable future, no proposals materially affecting the current cartel enforcement landscape are anticipated at this stage.
10 Tips and traps
10.1 What would be your recommendations to companies faced with a cartel investigation and what potential pitfalls would you highlight?
Companies faced with a cartel investigation, which often starts with a dawn raid, should immediately commission an internal investigation of the allegations which can be derived from the search warrant presented during the dawn raid. In any case, and especially if the cartel investigation was likely triggered by a leniency applicant (ie, another member of the cartel), companies faced with a cartel investigation should clarify the facts internally as quickly as possible through searches of email accounts and interviews with potentially involved employees. Time is of the essence with respect to a potential leniency application, as the Federal Cartel Office (FCO) will base the amount of the fine reduction of subsequent applicants on the sequence of applications, among other things. If an internal investigation confirms the allegations, the company must decide whether to apply for leniency by placing a marker with the Federal Cartel Office. Once a company has applied for leniency, it should ensure that it complies with the duty to cooperate fully and on a continuous basis with the FCO.
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.