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At311000 Treatise Germany - Authcheckdam
At311000 Treatise Germany - Authcheckdam
ADMINISTRATIVE INVESTIGATIONS
A.
Since the coming into force of the GWB on January 1, 1958, the
enforcement of the competition rules has primarily been entrusted to the
competition authorities founded at that time. 3 Public enforcement is
handled by the Federal Cartel Office (Bundeskartellamt, or BKartA)
1.
2.
3.
The author wishes to thank Daniel J. Zimmer for his valuable help in
preparing this chapter.
Gesetz gegen Wettbewerbsbeschrnkungen [Act Against Restraints of
Competition], July 27, 1957, BUNDESGESETZBLATT [BGBL] I 2114
(2005) (Ger.), as amended [hereinafter GWB]. An English version
prepared jointly by the author and the Federal Cartel Office [hereinafter
BKartA] is available at the offices website (English pages),
http://www.bundeskartellamt.de/wEnglisch/index.php.
The BKartA celebrated its 50th anniversary on January 15, 2008.
5.
6.
7.
8.
The
state
cartel
authorities
are
usually
part
of
the
Landeswirtschaftsministerium (State Ministries of Economics). The
Bundesministerium fr Wirtschaft und Technologie (Federal Ministry of
Economics and Technology) is only competent in the case of a
Ministererlaubnis (ministerial leave), allowing a merger after its
prohibition by the BKartA for macroeconomic benefits and pre-eminent
interests of the general public, GWB 42.
GWB 48(1), 50.
GWB 48(2).
GWB 130(2); see also Bundesgerichtshof [BGH] [Federal Court of
Justice], lfeldrohre [Oil Field Pipes], July 12, 1973, BGHSt 25 (208,
209-210), WUW/E BGH 1276 (1277) (Ger.).
See BKartA, Verwertungsgesellschaft [Collecting Society], July 15,
1963, WUW/E BKartA 704 (707) (Ger.), also cited by Christoph Stadler,
in KOMMENTAR ZUM DEUTSCHEN UND EUROPISCHEN KARTELLRECHT
[COMMENTARY ON GERMAN AND EUROPEAN COMPETITION LAW] 130
para. 220 (Eugen Langen & Hermann-Josef Bunte eds., 11th ed. 2011).
EVIDENCE GATHERING
There are two sets of rules governing the enforcement activity of the
BKartA.
The
rules
for
administrative
proceedings
(Verwaltungsverfahren) are primarily set out in the GWB and the Code
of Civil Procedure (Zivilprozessordnung, or ZPO). The rules for
monetary fine proceedings (Bugeldverfahren) are contained in the
Adminstrative Offenses Act (Gesetz ber Ordnungswidrigkeiten, or
OWiG), the Code of Criminal Procedure (Strafprozessordnung, or
StPO), and in the GWB.
Administrative proceedings are used primarily if the BKartA wishes
to stop infringements of competition law. However, if the BKartA
wishes to levy a fine, it has to use the monetary fine proceedings. In
making this decision, the BKartA enjoys a margin of discretion. In
borderline cases, the BKartA may prefer to limit itself to a cease and
desist order (under administrative proceedings) rather than imposing a
fine (under monetary fine proceedings). 11 The BKartA may rely on
evidence gathered during administrative proceedings in subsequent
9.
10.
11.
13.
14.
15.
16.
17.
18.
19.
20.
21.
rule may have been breached. 22 In May 2008, the BKartA opened its
first sector inquiry into the functioning of the domestic petrol and diesel
markets. Recently, the BKartA has intensified the use of sector inquiries,
additionally focusing on gas transmission networks, the electricity
wholesale market, the district heat sector, outdoor advertisement, the
dairy industry and most recently the food retail sector. The insights
the BKartA gains into the characteristics of any of these markets can lead
to the initiation of administrative or monetary fine proceedings. 23
(3) Inspections
The BKartA may inspect an undertakings business documents on
the undertakings premises during normal business hours without a
search warrant. 24
While the owner of the undertaking and its
representatives are under the obligation to provide the BKartA with
requested documents, to disclose requested information and to allow an
examination of the premises and documents, the BKartA may not search
the premises, i.e. may not seek after the requested information in case the
undertaking does not cooperate. Inspections do not typically play an
important role in administrative proceedings.
(4) Searches
In order to conduct a search of an undertakings premises, the
BKartA generally requires a search warrant issued by the local court
(Amtsgericht, or AG) 25 situated in the district where the search will be
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
(1) Searches
If
the
BKartA
has
reasonable
suspicion
(konkreter
33
Anfangsverdacht) that certain undertakings infringed the competition
rules and believes that a search will produce evidence thereof, it may,
with prior approval from the competent AG, 34 search all premises, land
and means of transport of the undertaking and that of individuals
(including their private residence and clothing) suspected of having
participated in the infringement. 35 As of January 1, 2008, AG Bonn is
the competent court for cartel enforcement and investigation matters in
monetary fine proceedings by the BKartA. 36
Under exceptional
circumstances, BKartA officials may even conduct a search without a
warrant if the judicial order cannot be obtained in time without seriously
risking the success of the search (i.e., imminent danger). 37 In practice,
however, the BKartA will usually obtain a search warrant for all
domestic offices of the undertaking suspected of the alleged
infringement, including all secondary rooms (such as basements or
storage rooms), and for all individual suspects, including their personal
belongings and their motor vehicles, before commencing the search.
Apart from the physical search of the premises, 38 a search warrant
also typically covers digital files and e-mail communications stored on
the undertakings servers and workstations installed in the offices of
employees suspected of having participated in the infringement (and
their assistants). 39 Furthermore, the BKartA may extract remotely stored
data from cell phone SIM-cards of these individuals. 40
33.
34.
35.
36.
37.
38.
39.
See BVerfG, June 23, 1990, NJW 690 (691), 1991 (Ger.).
StPO 105(1). The public prosecution office may authorize searches in
exigent circumstances. Id.
StPO 102. Searches may be extended to third parties on the reasonable
presumption that a search of their premises, land and motor vehicles will
lead to the discovery of specific pieces of evidence. StPO 103.
Cf. StPO 162(1). StPO 162(1) concentrates irrespective where the
relevant premises are located the jurisdiction for decisions relating to
investigative measures, in particular search warrants, at that court in
whose district the authority requesting the search warrant has its seat. The
BKartA is located in the court district of the AG Bonn.
BVerfG, Apr. 3, 1979, NJW 1539 (1540), 1979 (Ger.); BVerfG, Feb. 20,
2001, BVerfGE 103 (142), NJW 1121 (1123), 2001 (Ger.).
If the search cannot be completed within one day, the BKartA may also
seal rooms, cupboards or documents. Cf. StPO 110 para. 2.
Email communications constitute an important source of evidence for the
BKartA. While many undertakings seek to prevent competition law
40.
41.
10
42.
43.
44.
45.
46.
47.
11
53.
54.
12
55.
56.
57.
13
58.
59.
60.
61.
62.
BGH, Jan. 23, 1963, BGHSt 18 (227) (Ger.); Meyer-Goner, supra note
49, 97 para. 36, 40.
Schmidt in WETTBEWERBSRECHT [WETTBR] [COMPETITION LAW]
(GWB), 58 para. 6 (Ulrich Immenga & Ernst-Joachim Mestmcker
eds., 4th ed. 2007).
LG Bonn, Anwaltskorrespondenz [Legal Correspondence], May 29,
2005, WUW/E DE-R 1787 (1793) (Ger.).
GWB 50c(1).
Gesetz ber Ordnungswidrigkeiten [OWiG] [Administrative Offenses
Act]
46(1),
available
at
http://www.gesetze-iminternet.de/owig_1968/index.html, in connection with StPO 161(1); see
also Dannecker & Biermann, supra note 41, vor 81 para. 207; Helmut
Seitz, in ORDNUNGSWIDRIGKEITENGESETZ, vor 59 para. 60 (Erich
Ghler ed., 15 ed. 2009).
14
69.
15
FINING DECISIONS
70.
71.
72.
73.
Seitz, supra note 62, vor 59 para. 21; Rehbinder, supra note 68, 130
para. 386. For the particularity of the European Competition Network,
see Chapter I.B.2.
Schengen Acquis, May 1, 1999, O.J. (L 239), 2000, art. 49(a), available
at http://www.consilium.europa.eu; see Rehbinder, supra note 68, 130
para. 394. The Schengen Acquis comprises the Schengen Agreement and
the associated body of regulations. The original Schengen Agreement on
the gradual abolition of checks at the common borders of the parties was
signed on June 14, 1985.
For a full list of the potential administrative offenses, see GWB 81(1)(3).
GWB 81(4)(2) GWB. In the case of negligence, the fine can amount to
up to EUR 500,000 for individuals and, for an undertaking, must not
exceed 5 percent of its total world-wide turnover. OWiG 17(2).
16
the gravity and the duration of the infringement. 74 The BKartA usually
imposes the fine for reasons of punishment only, but it may also disgorge
the benefits of the infringement. 75 A leniency program has been in
existence for many years, and the current version of the program was
implemented in 2006 (Leniency Notice). 76
The 10 percent turnover limit for fining undertakings was
introduced in mid-2005. Before that, the maximum fine for competition
law infringements was EUR 500,000 per case. The BKartA interprets
the new provision as a cap (Kappungsgrenze) so that the calculation
pursuant to the BKartAs fining guidelines may yield a higher fine,
which is subsequently reduced to the 10 percent cap. However, the OLG
Dsseldorf, on constitutional grounds, recently interpreted this limit as a
maximum limit (Bugeldobergrenze) to the fine itself. 77 If the BGH
should uphold this interpretation then fines cannot ever (even during
their calculation) exceed the 10 percent limit. In practical terms, a fine
could only approach that limit in cases of the most severe infringements.
On the other hand, if 10 percent of global turnover is interpreted as a
maximum amount of a fine, then the average fine will likely be much
higher than is seen today. The constitutionality of the 10 percent cap
continues to be heavily contested. 78
74.
75.
76.
77.
78.
17
79.
80.
18
negotiations with the BKartA is still broader than at the EU level, where
the same 10 percent rebate applies.
Even though an undertaking that settles does not have to waive its
right to appeal the fine, the settlement procedure limits other rights of the
undertaking. For example, the undertaking does not have full access to
the file; instead, it can only view the most important pieces of evidence,
provided that such access will not have a negative impact on the ongoing
success of the investigation. Consequently, the BKartA issues an
abbreviated decision containing only the statutory minimum detail.
Because an adverse BKartA decision can be relied on by plaintiffs in
private damage actions, 81 an abbreviated decision may be advantageous
to the settling undertaking in such cases.
The imposition of administrative fines in cartel cases on individuals
also leads to an entry into the Central Trade Register
(Gewerbezentralregister).
This register may be consulted by
administrative agencies in deciding whether to admit an individual to a
specific trade. The entry is expunged after five years.
B.
FINING DECISIONS
81.
82.
83.
84.
GWB 33(4).
GWB 32(1). The BKartA may extend this prohibition even to
imminent future conduct if the undertaking is otherwise likely to
circumvent the decision. See, OLG Dsseldorf, E.ON-Ruhrgas, June 20,
2006, WUW/E DE-R 1757 (Ger.).
GWB 32(3).
GWB 32a(1).
19
90.
91.
GWB 32b(1).
BKartA, Soda-Club, February 9, 2006, WUW/E DE-V 1177 (1190)
(Ger.).
If the undertaking intentionally or negligently does not meet its
commitments, the BKartA may also render a fining decision. GWB
81(2)(2)(a).
GWB 34(1).
Deutscher Bundestag [German Bundestag], Entwurf eines Siebten
Gesetzes zur nderung des Gesetzes gegen Wettbewerbsbeschrnkungen
[Seventh Draft Law Amending the Act Against Restrictions of
Competition], BT-Drucks. 15/3640, 55, Aug. 12, 2008 available at
http://dip21.bundestag.de/dip21/btd/15/036/1503640.pdf; Bechtold, supra
note 55, 34 para. 2.
Cf. Volker Emmerich, in WETTBEWERBSRECHT [WETTBR] [COMPETITION
LAW] (GWB), 34 para. 9 (Ulrich Immenga & Ernst-Joachim
Mestmcker eds., 4th ed. 2007); Knig, supra note 79, 17 para. 40-44.
GWB 32d.
20
93.
94.
95.
21
and quota schemes that in some cases dated back to the 1970s. Only the
leniency applicant that qualified for a reduction of the fine (of EUR
12 million) did not appeal the decision, while all other companies lodged
appeals before the OLG Dsseldorf, which reduced the fines for the six
biggest producers considerably to EUR 328.7 million. 96 Their appeals
to the BGH are still pending, in parallel with private actions for damages
before the LG Dsseldorf. Due to complaints by customers in the fall of
2003, the BKartA had reasonable suspicion of continued or renewed
price arrangements and allocations of territories among the cement
producers and conducted a second search in the spring of 2004.
In the decorative paper cartel case, the BKartA in November 2007
simultaneously searched not only the premises of the three main
producers of decorative paper but also a hotel in Cologne at which the
representatives of these undertakings had gathered for a meeting of an
industry association. All three undertakings in the focus of the
investigation collaborated with the competition authority under the
leniency program and quickly entered into a settlement. As early as
February 2008, the BKartAs decision imposing fines in the aggregate of
EUR 62 million became binding. Notably, the BKartA in this case
collaborated with the Swedish competition authority.
In March 2011 the BKartA imposed fines totalling EUR 38 million
on three manufacturers of consumer goods on account of unlawful
exchange of information. Investigations against a fourth consumer goods
manufacturer are still pending. Two other manufacturers, among them
the immunity applicant, escaped fines. The representatives of the
manufacturers mainly exchanged information on the negotiating
positions of the retail trade. As the product portfolios of the various
manufacturers overlapped only partially, only the turnover attributable to
overlapping product groups was taken into account by the BKartA for
the calculation of the fine.
With respect to unilateral abuses, the BKartA has been particularly
active in the electricity and gas sectors. By way of example, the BKartA
initiated proceedings under Articles 101 and 102 of the TFEU against 15
gas transmission companies challenging their practice of long-term gas
supply contracts with their distributors. In its 2006 decision against
E.ON Ruhrgas, the BKartA not only prohibited such contracts but also
included the obligation that, until September 2010, E.ON Ruhrgas cannot
enter into new contracts with its distributors for more than four years if
96.
OLG Dsseldorf, June 26, 2009, VI-2a Kart 2-6/08 OWi para. 628-695
(Ger.).
22
BKartA, supra note 18, 30; see also OLG Dsseldorf, E.ON-Ruhrgas,
June 20, 2006, WUW/E DE-R 1757 (1762-1772) (Ger.).
98. BGH, Feb. 10, 2009, NJW-RR 1635, 2009 (Ger.).
99. Press Release, BKartA, Private Gas Customers Now Able to Switch
Suppliers (Feb. 14, 2006), available at http://www.bundeskartellamt.de
/wEnglisch/News/Archiv/ArchivNews2006/2006_02_14.php.
100. Cf. Press Release, BKartA, Proceedings Against Gas Suppliers of
Household and Commercial Customers First Proceedings Concluded
(Oct. 6, 2008), available at http://www.bundeskartellamt.de/wEnglisch
Press
Release,
/News/Archiv/ArchivNews2008/2008_10_06.php;
BKartA, Most Price Abuse Proceedings Against Gas Suppliers
Terminated (Dec. 1, 2008), available at http://www.bundeskartellamt.de
The
/wEnglisch/News/Archiv/ArchivNews2008/2008_12_01.php.
BKartA recently concluded that all undertakings had fulfilled their
commitments.
Press Release, BKartA, Gas Price Proceedings
Concluded Consumers Spared 444 Million (June 23, 2010), available
at
http://www.bundeskartellamt.de/wEnglisch/News/Archiv/
ArchivNews2010/2010_06_23.php.
101. BKartA, supra note 18, 22-23.
102. OLG Dsseldorf, Apr. 12, 2006, VI-Kart 5/06 (V) (Ger.).
23
24
25
prosecution and the interests and procedural status of the accused. 111
Evidence has been deemed inadmissible in cases where the suspect was
not duly informed of his right to remain silent, 112 was pressured or
deceived into the disclosure of the information, 113 or where documents
protected as true attorney-client communications were falsely
seized. 114
1. Confidentiality/Privilege of Information/Statements
Provided to Agency
In the course of administrative proceedings, all legal or natural
persons suspected of an alleged infringement have the right to access the
files of the BKartA 115 to the extent such access is necessary for pursuing
or defending their legal position. An express exception is carved out for
business secrets of third parties, which will generally not be revealed as
long as such third parties have credibly claimed their interest in
nondisclosure. 116
Once the BKartA has rendered an administrative decision and the
addressee has lodged an appeal, the addressee is generally entitled to
unrestricted access to the files. 117 Yet, the BKartA may refuse access to
its records if this is necessary to protect business secrets contained
therein. This will only be the case if the information contained in the
record has not already been disclosed or otherwise made available to the
public 118 and the owner of such information would suffer appreciable
26
27
28
CRIMINAL INVESTIGATIONS
131. Id. 3.7 (recognizing that the confidentiality of third party information
may predominate at the time of the application for access to the
information).
132. Because private entities are generally not bound by the strict rules on
tenders, they only enjoy the protection of section 298 of the German
Criminal Code if they adhere to these rules on a voluntary basis. See
BGH, Dec. 19, 2002, NStZ (548-549), 2003 (Ger.).
133. See BGH, July 11, 2001, BGHSt 47 (83), WUW/E Verg 486 (Ger.);
BGH, Jan. 8, 1992, BGHSt 38 (186), WUW/E BGH 2849 (Ger.).
134. OWiG 41(1); see also StPO 152, 160.
29
EVIDENCE GATHERING
30
1. Procedures
The respective procedures are identical to the ones discussed above
that are applied by the BKartA in other monetary fine proceedings.
However, the public prosecutor may additionally arrest or provisionally
apprehend the individual suspect and may request to intercept
telecommunications. 138 Yet, intercepted telecommunications are only
admissible if this is the only means to gain the requested evidence. The
same strict limit applies to the assignment of undercover investigators. 139
Evidence obtained via their use is only admissible if other means offer no
prospects of success or prove much more difficult. In any case, due to
the small number of bid-rigging cases, these investigation techniques do
not play an important role in practice.
2. Authority for Evidence Gathering
The authority to gather evidence for bid-rigging prosecutions is
vested in both the BKartA and the public prosecutor. The latter will
often rely on police officers working on behalf of the prosecution. To
intercept telecommunications, however, a judicial order is generally
required, unless the public prosecutor acts on grounds of imminent
danger (with subsequent approval by the court within three days). 140
3. Use of Evidence or Findings from Other
Jurisdictions/Authorities
If a governmental authority, in particular the BKartA, finds evidence
of bid-rigging, the agency will refer the proceedings regarding the
suspected individual to the public prosecutor. 141 In parallel, the public
prosecutor may also request information pertaining to potential criminal
offenses from all authorities, who, in turn, are generally obliged to
provide such information. 142 In practice, both the BKartA and the public
prosecutor try to cooperate at the earliest possible moment and
138. StPO 100a(2)(1)(r) (explicitly listing bid-rigging cases among other
serious crimes in which the interception of telecommunications is
admissible).
139. StPO 110a.
140. Id. 110b(1).
141. OWiG 41(1).
142. StPO 161(1); see also Dannecker & Biermann, supra note 41, vor 81
para. 207; Seitz, supra note 62, vor 59 para. 60.
31
32
VI.
PENALTIES/LENIENCY
A.
33
34
concluded in 2003, the BKartA fined two of the companies for bidrigging with respect to the supply of light-signal and simulation
ammunition for the German Armed Forces. 156
In September 2003, the BKartA and the Cologne Public Prosecutors
Office jointly searched a large number of companies in the waste
management sector for alleged bid-rigging for service contracts tendered
by Der Grne Punkt Duales System Deutschland. In addition to the
monetary fine proceedings initiated by the BKartA, the public prosecutor
instituted a criminal investigation into violations of section 298 of the
StGB. 157 The investigation was triggered by witness testimony and the
results of the tender process. The BKartA alleged that there was a
conspicuously high number of areas in which only one bid was entered
in many cases by the former contracting party. The BKartA sent
statements of objections to several companies in 2007 and 2008, but
eventually closed the matter because the charges had become timebarred. 158
In June 2007, the BKartA and the Munich Public Prosecutors Office
searched undertakings in the road salt industry and the private premises
of their representatives. The BKartA fined the undertakings in
November 2008. 159
The criminal proceedings led by the public
prosecutor against the individuals resulted in several criminal fines.
Some of these cases are still pending.
C. DEFENSES/PROTECTIVE MEASURES AVAILABLE TO TARGETS
OF INVESTIGATION
1. Defenses to Evidence Gathering
(Documents/Witnesses/Statements)
An individual suspected of a bid-rigging offense enjoys the same
rights of defense to evidence gathering by the public prosecutor as those
described above for a suspect in monetary fine proceedings before the
BKartA.
35
2. Confidentiality/Privilege of Information/Statements
Provided to Agency
Evidence obtained in the course of a criminal investigation will not
be available to the public at large. The IFG expressly exempts such
evidence from disclosure if the release of the information will negatively
impact criminal proceedings and related investigations. 160 However, the
person or the corporate body who invited the tenders may as the party
injured by the criminal offense generally request access to the court
files. 161
Such access will not be granted, though, where the
confidentiality interests of the accused or other persons outweigh an
injured partys interest in private redress. A court can also refuse access
if its fact-finding may be compromised or its proceedings considerably
delayed. 162
VII.
IFG 3(1)(g).
StPO 406e. See Chapter I.E.2. for the monetary fine proceeding.
StPO 406e(2).
GWB 33(3)(2).
BGH, Apr. 7, 2009, WRP 745, 2009 (Ger.). In addition, the BGH did not
object to the "business model" of the CDC Cartel Damage Claims, S.A., a
Belgian company seeking to enforce antitrust damage claims purchased
from victims of the cement cartel.
36
damage claims in Germany were scarce. This was particularly true for
cartel cases as the majority of regional and higher regional courts
restricted the right to damages to those parties that were directly
targeted by the tortfeasors. 165 Influenced by the European Court of
Justices decision in Courage, 166 the amended section 33(1)(3) of the
GWB now expressly provides for a right of compensation for any
person affected, including competitors and other market participants
impaired by the infringement.
In addition, amended section 33(4)(1) of the GWB introduced a
binding effect for final decisions by the BKartA, the EU Commission,
and the national competition authorities of the EU Member States: 167 A
court hearing a case for private damage claim is bound by such decision
finding a competition law infringement. 168 The court is, however, not
bound to aspects of causation, fault or quantum of damage. Furthermore,
the binding effect will not apply to infringements committed before the
165. Compare OLG Karlsruhe, Vitaminpreise [vitamin prices], Jan. 28, 2004,
WUW/E DE-R 1229 (1230), NJW 2243, 2004 (Ger.), and LG Mainz,
Vitaminpreise Mainz [vitamin prices Mainz], Jan. 15, 2004, WUW/E DER 1349 (1350), NJW-RR 478 (479), 2004 (Ger.), with LG Dortmund,
Apr. 1, 2004, WUW/E DE-R 1352 (1353), EWS 434 (436), 2004 (Ger.);
OLG Stuttgart, Carpartner II, May 22, 1998, WUW/E DE-R 161 (Ger.).
166. C-453/99, Courage Lt. v. Crehan, [2001] E.C.R. II-6297, 26, available
at
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en;
Deutscher
Bundestag, supra note 89, 35, 53.
167. In case of an appeal of such decision, the binding effect is extended to a
confirmatory final judgment. GWB 33(4)(2). The unconditional
recognition of findings from foreign authorities apart from the EU has
been considered unconstitutional. See Emmerich, supra note 90, 33
para. 77;
Monopolkommission
[Monopoly
Commission],
Sondergutachten, Das allgemeine Wettbewerbsrecht in der Siebten GWBNovelle No 41 [Special Report No 41] para. 54 (2004). But this claim
has not yet been tested before the courts.
168. If a damage claim is brought during the time of such an appeal, the
German civil court is free to suspend its proceedings until a ruling has
become final. Zivilprozessordnung [Code of Civil Procedure], Dec. 5,
2005, BUNDESGESETZBLATT [BGBL] I 3202 (2006), 148 (Ger.), as
amended [hereinafter ZPO]; OLG Dsseldorf, Zementkartell [Cement
Cartel], May 5, 2006, WUW/E DE-R 1755 (1757) (Ger.).
37
38
39
40
41
42
43
Conclusion
The German competition law regime has traditionally focused on
public enforcement. The competition authorities, in particular the
BKartA, are therefore equipped with a number of very effective
enforcement techniques and tools both in administrative and monetary
fine proceedings. The BKartAs enforcement efforts in hardcore cartel
cases are to a large extent based on the introduction of its leniency
program. As the authority almost became the victim of its own success, it
had to invent mechanisms to streamline its procedures, in particular by
introducing a plea bargaining system.
The late emergence of private (follow-on) antitrust damage claims as
a second pillar of German competition law enforcement has been
facilitated by the non-availability of the pass-on defense. In the absence
of far-reaching pre-trial discovery access to the files of the BKartA
(including leniency applications) has become the litmus test. However,
granting access to these files might deter potential future whistleblowers
and thus hinder the uncovering and breakup of cartels in the future.
Guidance on these issues is expected from the Court of Justice of the
European Union in the second half of 2011.