GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
case. The fine amounted to EUR370 million, with a combined fine of EUR646 million against three undertakings and three individuals. The conduct was in place from mid-2002 until June 2016. Criminal sanctions against individuals can be imposed in case of bid rigging. In the Rail Tracks cartel, for example, the public prosecu - tor charged 14 managers, all of whom entered into a settlement agreement and thus avoided a judgment by paying a financial obligation of up to EUR150,000. In 2014, the German government extradited Ital - ian businessman Romano Pisciotti to the United States for his participation in the Marine Hose cartel. The case was highly controversial but the legitimacy was ultimately confirmed by the Euro - pean Court of Justice. 5.6 Relevance of Effective Compliance Programmes Following the tenth amendment to the ARC, compliance efforts are now explicitly listed as a possible mitigating factor for fining. Section 81d of the ARC stipulates that compliance efforts before and after the infringement can be taken into account. As to compliance efforts before the infringement, these measures must be “appro- priate and effective” . According to the official grounds of the law, this is generally the case if the infringement was detected and reported in line with compliance measures and if the man - agement was not involved. This is now also reflected in the FCO’s fining guidelines. Before the amendment, the FCO argued that the existence of an infringement merely proved that existing compliance efforts were not effective. The FCO was only willing to consider the posi - tive effects of compliance programmes in settle - ment talks. Under the new fining guidelines, this
strict approach will likely no longer be applied. However, the FCO’s president has indicated some reluctance in this regard. 5.7 Mandatory Consumer Redress Under German law, there is no legal obligation for consumer redress; however, it can serve as a mitigating factor when determining the mag - nitude of a potential fine. 5.8 Judicial Review or Appeal The FCO′s decisions are subject to appeal. The appeal must be lodged with the FCO within two weeks following the service of the decision. If the FCO decides to uphold its decision, it trans - fers the file to the public prosecutor, who is then charged with defending the decision in the court proceedings before the Higher Regional Court of Düsseldorf. Appeals used to be rather frequent for fining decisions that were not issued as settlement decisions. However, companies have become much more reluctant to appeal since the High - er Regional Court of Düsseldorf tightened its approach by applying a different calculation method for fines that often leads to even higher fines than those imposed by the FCO. 5.9 Timeline of Cartel Enforcement Process The length of FCO proceedings can vary consid - erably from case to case and depends on sever - al factors. Of particular importance are the num - ber of investigated companies and individuals, the complexity of the infringement, the amount and type of evidence, and the willingness of the undertakings to co-operate or to settle. In typi - cal cases, it takes the FCO between two and four years on average to render a fining deci - sion. In the Confectionery Cartel, for example, the decision was only issued after six years and
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