GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
1.8 Enforcement Priorities The FCO’s cartel enforcement typically focuses on “classic” infringements, such as bid rigging, price fixing or the exchange of sensitive infor - mation between competitors. The FCO is also highly active in prosecuting vertical infringement, in particular resale price maintenance. While the FCO emphasises its increasing capa - bilities to detect infringements ex officio, the majority of cases are still triggered by leniency applications or tip-offs from the market. 1.9 Guides Published by Governmental Authorities The FCO regularly issues information brochures, guidance papers, notices, etc – both in German and in English – on its website. Documents of particular importance include: • guidelines for the Setting of Fines in Cartel Administrative Offence Proceedings; • guidelines on the Leniency Programme; and • an information leaflet on the Settlement Pro - cedure Used by the Bundeskartellamt in Fine Proceedings.
which, according to the FCO, increasingly con - tributes to uncovering cartel conduct. The FCO also makes more and more use of software-based screening tools. However, the authority is limited in using large AI foundation models, as the majority of the relevant data is being processed outside the EU. The first steps taken by the FCO depend on the nature of the infringement, as well as the evi - dence that the FCO has already obtained. In less severe or merely bilateral cases, the FCO may issue a statement of objections at an early stage and request that the suspects comment on it. The FCO can also issue formal requests for information or documents. In hardcore cartel proceedings, the FCO will usually hear the leniency applicant first before initiating further steps. It will then request as much information as possible so that it is in a position to initiate dawn raids (see 2.2 Dawn Raids/Search Warrants ). At this early stage of the proceedings, the FCO will try to ensure that the investigation remains highly confidential in order to avoid putting the efficiency of dawn raids at risk. It may even ask the leniency appli - cant to continue the cartel behaviour so as not to raise any suspicion within the group of cartel members. 2.2 Dawn Raids/Search Warrants Dawn raids used to be very common in cartel investigations in Germany before the COVID-19 pandemic. In line with the international trend, the FCO is, once again, increasingly active in this respect after the pandemic. Dawn raids can be conducted at the premises of the suspected firm or person – including private homes – but also at third parties′ premises. One change brought about by the pandemic is a greater focus on
2. Early Stages of Cartel Enforcement 2.1 Initial Investigation
The FCO has a vast scope of discretion as to whether and how to open proceedings. They are usually triggered by leniency applications (see 3.1 Leniency ), formal or informal complaints, anonymous hints or the FCO′s own investiga - tions of, for example, previous proceedings or sector inquiries. The FCO also operates a system for anonymous tip-offs via its website,
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