GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
SZA Schilling, Zutt & Anschütz Otto-Beck-Strasse 11 DE-68165 Mannheim Germany Tel: +49 621 4257 0 Fax: +49 621 4257 280 Email: Christina.Malz@sza.de Sebastian.Groess@sza.de Web: www.sza.de
1. Cartels Law and Regulation 1.1 Legal Bases The statutory basis for challenging cartel behav - iour/effects is the German Act Against Restraints of Competition (ARC) ( Gesetz gegen Wettbew- erbsbeschränkungen , or GWB). Section 1 prohib - its cartel behaviour (see 1.4 “Cartel Conduct” ). Article 101 of the Treaty on the Functioning of the European Union (TFEU) applies in parallel and is equally subject to enforcement by the Federal Cartel Office (FCO) ( Bundeskartellamt ) (unless the case falls within the EC′s jurisdiction). Section 81 et seq of the ARC provide for the possibility of imposing administrative fines on cartel members (both persons and compa - nies). Further provisions on fines – with regard to the procedural aspects of fining proceedings – are contained in the German Act on Regula - tory Offences ( Ordnungswidrigkeitengesetz , or OWiG), which are modified by the special provi - sions of the ARC to a certain extent. In addition, certain types of cartel conduct (eg, bid rigging) fall under the Criminal Code. In addition, Sec - tions 32–32e of the ARC confer certain admin - istrative powers on the FCO to issue cease-and- desist orders.
1.2 Regulatory/Enforcement Agencies and Penalties The most important public enforcer in the field of cartels in Germany is the FCO. If the conduct in question amounts to a criminal offence (eg, in bid-rigging cases), the public prosecutor will also be in charge of the proceedings against the natural persons involved, while the FCO remains in charge of the fining proceedings against the legal entity. Section 48 of the ARC also lists the Federal Minister of Economic Affairs and Energy and the Federal States′ Competition Authorities as “competition authorities” as defined by the ARC; however, they only play a limited role in practice. The former has specific powers in the field of merger control, whereas the latter′s pow - ers are restricted to cases with a regional scope. Fines Regarding the scope of liabilities within pub - lic enforcement, the most drastic sanction for legal entities is the administrative fine, which can amount to 10% of the undertaking’s annual turnover (Section 81c(2) of the ARC). Fines for individuals are usually equal to one year’s gross salary but can be up to EUR1 million. The main parameters for determining fines are outlined in a non-exhaustive list of criteria (Sec - tion 81d) that specifies the overarching referenc -
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