GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
• the applicant ceases the cartel infringement unless certain actions are still required to enable dawn raids; and • the applicant co-operates fully and on a con - tinuous basis. Further obligations apply – for example, regard - ing confidentiality. If the FCO is already in a position to obtain a search warrant, full immunity is still possible. The FCO then requires (together with the conditions outlined in the second and fourth points) that the applicant is the first participant in the car - tel to contact the FCO before it has sufficient evidence to prove the infringement, and that no cartel participant is granted immunity under the above-mentioned conditions. One of the main differences vis-à-vis the FCO′s former rules is that now even so-called ring leaders (ie, companies that were the sole leader of a cartel) are entitled to full immunity. How - ever, those who compel others into a cartel are excluded from immunity. Reduction of Fines If no full immunity can be granted, the FCO can reduce the fine if an applicant provides the FCO with information and – where available – evi- dence that makes a significant contribution to proving the infringement. Full and continuous co-operation with the FCO is also a prerequisite for reducing the fine. The amount of the reduc - tion depends on the time of the co-operation and the quality of added value provided. The leniency programme provides the oppor - tunity to declare the willingness to co-operate ( “marker” ). The timing of placing the marker is decisive for the rank of the leniency application.
It can be placed verbally or in writing, and in German or English. The marker must contain details about the type and duration of the infringement, the product and geographic markets affected, the identity of those involved, and other competition authori - ties′ applications that have been or are intended to be filed. After the marker has been placed, the FCO will set a deadline of up to eight weeks for the applicant to submit a full-fledged leniency application. If an application for leniency is placed with the EC, the FCO accepts a summary application in accordance with the ECN notice. The FCO may then exempt the undertaking from filing a full leniency application until further notice. 3.2 Amnesty/Immunity Besides the leniency scheme described in 3.1 Leniency , there is no other amnesty or immu- nity regime relating to the prosecution of cartel conduct. 3.3 Whistle-Blowers Whistle-blowers benefit from certain legal safe - guard under the German Whistleblower Pro - tection Act ( Hinweisgeberschutzgesetz ), which implements the EU Whistleblower Directive. This law provides protections for natural persons who report or disclose information about a wide range of violations, which they have encountered in connection with their professional activities. This includes violations of national or European competition law, and in particular cartel conduct. Under the new law, whistle-blowers are pro - tected against any form of retaliation by their employer. The law also provides that whistle- blowers cannot be held legally responsible for obtaining or accessing information they reported
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