FCO decision

Automotive part manufacturers have been on the competition authorities' radar screens for many years. On June 24 2015 the Federal Cartel Office (FCO) announced that it has imposed fines of €75 million on five manufacturers of acoustically effective components which supply the automotive industry. This was the first proceeding to be triggered by an anonymous notification to the FCO's electronic whistleblowing system and concluded with fines. However, in accordance with the FCO's leniency programme, no fine was imposed on Johann Borgers GmbH, which participated in the agreements but was the first company to cooperate with the FCO.

Grounds for immunity

The FCO confirmed that immunity from fines was not given based on Paragraph 3 of Notice 9/2006 on Immunity from and Reduction of Fines in Cartel Cases, but rather on Paragraph 4. Under Paragraph 3 of the notice, the FCO will grant a cartel participant immunity from a fine if it:

  • is the first participant in a cartel to contact the FCO before it has sufficient evidence to prove the offence;
  • provides the FCO with oral and written information and, where available, evidence which enables it to prove the offence;
  • was not the sole ringleader of the cartel and has not coerced others to participate in the cartel; and
  • cooperates fully and on an ongoing basis with the FCO.

Paragraph 4 of the notice stipulates that even if the FCO is in a position to obtain a search warrant, as a rule it will grant a cartel participant immunity from a fine if it:

  • is the first participant in a cartel to contact the FCO before it has sufficient evidence to obtain a search warrant;
  • provides the FCO with oral and written information and, where available, evidence which enables it to obtain a search warrant;
  • is not the sole ringleader of the cartel and has not coerced others to participate in the cartel;
  • cooperates fully and on an ongoing basis with the FCO; and
  • no other cartel participant will be granted immunity pursuant to Paragraph 3.

Comment

The recent proceeding is one of the rare cases in which the FCO has granted full immunity from fines even though it already had sufficient evidence to obtain a search warrant. In this case, the information to obtain the search warrant was based on an anonymous notification. However, although it was sufficient to obtain a search warrant, the anonymous information was not enough to prove the offence.

The case demonstrates that companies which are subject to a dawn raid may still have the chance to obtain full immunity if they are first to cooperate fully by providing information which the FCO has not obtained from an anonymous whistleblower. Whistleblowers tend to give only a limited amount of information in order to protect their anonymity. Therefore, after the whistle has been blown, the race for full immunity is still on.

For further information on this topic please contact Markus Schoner at CMS Hasche Sigle by telephone (+49 40 37 63 00) or email (markus.schoener@cms-hs.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.

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