GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
4.5 International Inter-Agency Co- Operation The FCO regularly co-operates with other enforcement agencies, especially in the con - text of the ECN. The co-operation between the authorities within the ECN is now governed by Sections 50c and 50d of the ARC, which trans - pose the relevant provisions of the ECN+ Direc - tive (see 1.7 Principles of Comity ). 4.6 Issuing Criminal Indictments German criminal law only applies to natural per - sons. This means that if conduct such as bid rigging also amounts to criminal behaviour, there will be two separate proceedings – ie, proceed - ings regarding administrative fines against the undertaking and criminal proceedings against the individual(s) (see also 1.2 Regulatory/ Enforcement Agencies and Penalties ). The investigations related to criminal cases (ie, against the individual) are conducted by the public prosecutor. The FCO is in charge of the investigations against the undertaking but can choose to hand over these proceedings to the public prosecutor. As the FCO has special expertise and staff reserved for these cases, it will generally refrain from doing so. The public prosecutor will investigate the case and, once it has collected sufficient evidence, issue a bill of indictment to the criminal court – either the local court ( Amtsgericht ) or the region - al court ( Landgericht ), depending on whether the sentence is likely to exceed four years of impris - onment. At this stage, the suspect′s defence lawyer has a right to access the file. Before the indictment, access to files will depend on whether it may impede the investigation. The criminal court will then usually open the formal proceedings.
4.7 Issuing Civil Complaints Under German law, the notion of “civil cases” in cartel matters only refers to private civil litiga - tion (see 6. Civil Litigation ). Fines can only be imposed in an administrative procedure con - ducted by the FCO. 4.8 The Role of Experts The FCO usually does not rely on external experts for its investigations in cartel proceed - ings. It is possible, at all stages of the investi - gation, to retain expert advice on, for example, the economics of relevant markets or constitu - tional issues – by either the FCO or the parties involved. Parties may also consult economic experts (eg, auditors) should they consider invoking an inability to pay a fine. 4.9 Possibility of Multiple Proceedings If the cartel conduct amounts to criminal behav - iour, the FCO and the public prosecutor can con - duct proceedings in parallel (see 1.2 Regulatory/ Enforcement Agencies and Penalties ). In this case, the FCO will usually lead the pro - ceedings against the undertaking and the public prosecutor against the individuals involved in the cartel. 5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines The FCO has the authority to impose administra - tive fines directly. Administrative fines for under - takings can reach up to 10% of the economic entity′s turnover in the previous financial year (see 1.2 Regulatory/Enforcement Agencies and Penalties ).
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