On 11 October 2021, the Federal Cartel Office (FCO) published new guidelines for its leniency programme and for imposing fines in cartel proceedings.
Leniency programmes have long been used in antitrust law and they are essential in the fight against cartels. Cartels can typically be uncovered only by cartel participants. Through the leniency programme, cartel participants can be granted full immunity from fines or receive a reduction of fines if they help to uncover a cartel between competitors. In practice, the leniency programme has already helped to uncover a large number of cartels. In 2000, the FCO issued general administrative principles on leniency for this purpose for the first time.
While the provisions on the leniency programme have now been set out in law for the first time in the 10th amendment to the German Act against Restraints of Competition (ARC) and they serve to implement the European Union's ECN+ Directive, the new guidelines on setting fines are primarily intended to adapt the administrative principles to judicial practice, which has so far differed considerably in some cases.
In principle, any cartel participant can apply to the FCO under the leniency programme. If cartel participants under the leniency programme help to uncover a cartel between competitors, the FCO can grant full immunity from fines. The prerequisite for leniency is sustained and full cooperation with the FCO. In addition, full immunity from fines is only possible for the first party to cooperate. If further parties cooperate, only a reduction of the fine can be considered. However, even in this case, according to the information leaflet on the leniency programme,(1) which has also been newly published, "the earlier cooperation takes place, the more valuable it usually is and the more it can be rewarded".
According to the guidelines on the leniency programme,(2) for full immunity from fines the cartel participant must, in principle, put the FCO in a position to be able to obtain a search warrant based on the information provided. For those cooperating afterwards, the extent of the reduction depends on the usefulness of the information and/or evidence and on the time of the application. The maximum reduction can be 50% of the fine.
As part of the implementation of 10th amendment to the ARC, the FCO has also revised the guidelines for the setting of fines. In the future, a percentage of the offence-related turnover will be used as the starting point for the calculation of fines, the amount of which will be based on the total turnover of the company in the last business year. The offence-related turnover is to be understood as the total turnover that was achieved with the products or services that were subject to the infringement in the infringement period.
In addition, the guidelines now list certain offence- and offender-related characteristics that are to be taken into account in the overall calculation of the fine. In addition, compliance measures taken before and after the offence can now also be taken into account when calculating the fine.
According to FCO President Andreas Mundt:
[C]ompanies which are involved in a cartel can more easily judge what they can expect and under what conditions they can be considered for exemption from paying a fine or having their fine considerably reduced.
With the help of the guidelines on the leniency programme, the incentives to uncover cartels will increase.
With regard to the guidelines on the setting of fines:
[T]he method of calculation, in particular, has been changed and adapted more closely to court practice. However, the turnover achieved from the infringement of competition law still remains the key factor. On the whole, the level of fines will therefore not change significantly.
Therefore, it will be easier for the concerned companies to review decisions imposing fines and, if necessary, to challenge the amount of the fine imposed in the future.
Finally, with regard to the consideration of compliance measures, these can now also be considered if the measures taken did not lead to detecting a violation, according to the guidelines for the setting of fines.(3) This is the case for violations below acompany's management level:
if the precautions taken did not lead to the detection and reporting solely because the acting person disregarded the compliance code of the company to an extraordinary degree and under deliberate deception of his superiors for the purpose of achieving personal advantages.
For further information on this topic please contact Raoul Schätzler at Fieldfisher by telephone (+49 211 950 749 0) or email ([email protected]). The Fieldfisher website can be accessed at www.fieldfisher.com.
(1) Further information is available here (in German).
(2) Further information is available here (in German).
(3) Further information is available here (in German).