Germany - American Bar Association

Transcription

HANDBOOK ON MULTIJURISDCTIONAL
COMPETITION LAW INVESTIGATIONS
Germany
Dr. Christoph Stadler 1
Introduction
In Germany, the main focus of competition law enforcement has
traditionally been administrative enforcement and, in that sense, civil
enforcement. By contrast, criminal enforcement has only played a
marginal role because it is limited to bid-rigging cases. The German
competition authorities do not themselves engage in any civil
governmental investigations, i.e. actively supporting private actions.
However, recent amendments to the Act against Restraints of
Competition (Gesetz gegen Wettbewerbsbeschränkungen, or “GWB”) 2
have opened the doors of the German courtrooms more widely for
private litigants.
I.
ADMINISTRATIVE INVESTIGATIONS
A.
ENFORCEMENT STRUCTURE/GOVERMENTAL AGENCIES
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 Wettbewerbsbeschränkungen [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 office’s website (English pages),
http://www.bundeskartellamt.de/wEnglisch/index.php.
The BKartA celebrated its 50th anniversary on January 15, 2008.
2
ABA Handbook on Competition Law Investigations
and the individual cartel authorities of the 16 German states. 4 All
authorities are responsible for the enforcement of both German and
European competition rules. 5 However, the BKartA has exclusive
jurisdiction for all cases producing effects beyond the territory of a single
federal state. 6 In practice, it plays a far more important role than the
state cartel authorities.
B.
JURISDICTIONAL REACH OF AGENCIES
In line with the so-called “effects doctrine” of international law, the
GWB applies to any conduct that produces direct, appreciable and
foreseeable anticompetitive effects in Germany, even if the conduct itself
took place outside Germany. 7 Similar to the GWB’s “extraterritorial”
ambit, the BKartA has the power to initiate proceedings in any case
subject to the German competition rules. 8 The BKartA may therefore
investigate any anticompetitive conduct affecting competitive conditions
in Germany, regardless of the territorial origin of such conduct.
The jurisdictional reach of the BKartA is determined by the
territoriality principle under international law: public enforcement,
including any measures undertaken in the course of such proceedings,
constitutes a sovereign act and is thus restricted to the national territory.
The BKartA is therefore only competent to exert its powers within the
boundaries of the Federal Republic of Germany. Investigative or other
formal measures outside Germany require the cooperation of the
respective foreign state. While Germany has concluded a number of
4.
5.
6.
7.
8.
The
state
cartel
authorities
are
usually
part
of
the
Landeswirtschaftsministerium (State Ministries of Economics). The
Bundesministerium für 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], Ölfeldrohre [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 EUROPÄISCHEN KARTELLRECHT
[COMMENTARY ON GERMAN AND EUROPEAN COMPETITION LAW] § 130
para. 220 (Eugen Langen & Hermann-Josef Bunte eds., 11th ed. 2011).
Competition Law Enforcement in Germany
3
bilateral agreements covering mutual legal assistance in proceedings by
competition authorities, the scope of these agreements is very limited.
For instance, the 1976 agreement concluded with the U.S. only covers
general principles of assistance and the transmission of communications
seeking to obtain information or interviews on a voluntary basis. 9
Within the European Competition Network (“ECN”), more far-reaching
rules apply, in particular regarding investigative measures on behalf of
other European cartel authorities, and regarding the exchange of
(confidential) information. 10
C.
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 (Bußgeldverfahren) are contained in the
Adminstrative Offenses Act (Gesetz über 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.
United States-Germany Antitrust Accord, Agreement Between the
Government of the United States of America and the Government of the
Federal Republic of Germany Relating to Mutual Cooperation Regarding
Restrictive Business Practices, June 23, 1976, BGBl. II 1711 (1976),
available at http://www.justice.gov/atr/public/international/docs/0353
.pdf.
Council Regulation (EC) No 1/2003, Implementation of the Rules on
Competition Laid Down in Articles 81 and 82 of the Treaty, arts. 12, 22,
2003 O.J. (L 1) 1, 11, 22,
available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:l:2003:001:0001:0025:
en:PDF [hereinafter EC Regulation 1/2003].
For a list of competition law infringements subject to a fine, see GWB
§ 81(1)-(3).
4
monetary fine proceedings, since the competition authority may at any
time switch from the former to the latter. 12
1. Procedures
a. Administrative Proceedings
When initiating administrative proceedings for an alleged
infringement of competition law, the BKartA may conduct investigations
and collect all the evidence required. 13 Among the various types of
evidence the authority is permitted to gather, the GWB expressly
identifies the inspection (Augenschein), the testimony of witnesses 14 and
testimony of experts. In addition, the GWB provides rules for three
additional types of evidence gathering: requests for information, sector
inquiries, and searches (Durchsuchung). In practice, most administrative
investigations by the BKartA have a rather informal character and are
based on telephone conversations and simple exchanges by fax or e-mail.
(1) Request for Information
The BKartA may issue a request for information if there is
reasonable suspicion that an infringement of competition law may have
taken place. The BKartA will often first approach the undertaking
informally asking for voluntary cooperation and will only revert to a
formal request if the undertaking does not comply or if the voluntary
disclosure is incorrect or incomplete. Once a formal request is issued,
the addressee is obliged to fully comply under threat of a fine of up to
EUR 100,000. 15 The undertaking and its representatives may refuse to
provide information only if their answer would expose the individuals
involved or their relatives to the risk of criminal prosecution or monetary
fine proceedings. 16
12.
13.
14.
15.
16.
BKartA, Schlecker, June 27, 2005, also cited in KARTELLRECHTSPRAXIS
UND KARTELLRECHTSPRECHUNG 2005/06 [ANTITRUST PRACTICE AND
ANTITRUST LAW 2005/06], para. 1209 (Silke Hossenfelder, Wilko
Töllner & Konrad Ost eds., 21st ed. 2006).
GWB § 57(1).
Such testimony may also be taken under oath if so ordered by a
Amtsgericht [Local Court, “AG”]. GWB § 57(6).
GWB § 81(2)(6).
GWB § 59(5). This refusal right does not extend to potential liability in
ensuing private damage claims. Kammergericht [KG] [Higher Regional
5
The BKartA may request all information that is potentially relevant
in its inquiry. A request for information may also require the surrender
of relevant documents, including business secrets and general market
surveys, in order to evaluate and analyze the conditions of competition or
the market situation. 17 As the BKartA enjoys a wide discretion in this
regard, the addressee has to accept even a substantial burden imposed by
such a request. 18 Because a request may even extend to the “economic
situation of undertakings associated with” the addressee, the BKartA
effectively enjoys an indirect power to investigate parent companies
located anywhere outside Germany. 19
Indeed, under German
competition law, the BKartA has the power to formally request
information up until its decision enters into binding force, and may
therefore use these investigative tools to supplement the reasoning of a
pending decision even at a very late stage of the administrative
proceedings. 20
(2) Sector Inquiry
Since mid-2005, the GWB provides a statutory basis for the BKartA
to conduct sector inquiries if rigid prices or other circumstances suggest
a restriction or distortion of domestic competition. In particular, the
BKartA may request information on “all agreements, decisions and
concerted practices.” 21 Such an inquiry does not require a “reasonable
suspicion” (konkreter Anfangsverdacht) by the BKartA against certain
undertakings for said violations. Instead, it is sufficient that there is a
plausible suspicion based on specific facts that a particular competition
17.
18.
19.
20.
21.
Court of Berlin], Heizölhandel [Heating Oil Trade], Mar. 27, 1981,
WUW/E 2446 (2447) (Ger.).
GWB § 59(1)(1).
Oberlandesgericht [OLG] [higher regional court] Düsseldorf, Xella
Group, June 4, 2006, WuW/E DE-R 1861 (1865) (Ger.), cited in BKartA,
Bi-Annual Activities Report 2005-2006, BT-Drucks. 16/5710, 40,
available at http://dip21.bundestag.de/dip21/btd/16/057/ 1605710.pdf. In
particular, the undertaking is required to submit business secrets. Id.
See id.
See BGH, Habet/Lekkerland, June 24, 2003, BGHZ 155 (214, 220-221),
NEUE JURISTISCHE WOCHENSCHRIFT [NJW] 3776 (3778), 2003, WUW/E
DE-R 1163 (1166-1167) (Ger.).
GWB § 32e(2)(2).
6
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 undertaking’s business documents on
the undertaking’s 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 undertaking’s 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.
OLG Düsseldorf, Stromcontracting, June 11, 2003, WUW/E DE-R 1179,
(1180-1184) (Ger.).
See, e.g., BKartA, Sektoruntersuchung Stromerzeugung und
Stromgroßhandel [Final Report on Sector Inquiry into Electricity
Production and Wholesale], Jan. 13, 2011, available at
http://www.bundeskartellamt.de/wDeutsch/download/pdf/Stellungnahme
n/110113_Bericht_SU_Strom__2_.pdf.
GWB § 59(1)(1)(3).
The AG is the court of first instance in Germany, competent for, inter
alia, procedural questions in cartel enforcement matters. Germany,
although a federal republic, has only one court system with separate
branches for civil, criminal, administrative, tax, labor and social security
law. The courts apply both federal and state laws. Generally, the
German court system provides for two stages of appeal, the second
instance testing the decisions for both de facto and legal errors and the
final instance only testing decisions for legal errors. In hierarchical order
7
performed. 26 However, BKartA officials may conduct the search even
without such prior judicial order if there is a tangible threat (i.e.,
imminent danger) that the evidence sought will be irrevocably lost during
the time required to obtain the search warrant. 27 Such threat may exist if
the undertaking refuses to turn over specific documents and the BKartA
suspects that the relevant information may later be destroyed.
In the course of an inspection or search, the BKartA may seize
objects of potential importance as evidence in the investigation. 28 If
either the “person affected” was not present during the search, or such
person has explicitly objected to the seizure, the BKartA must seek
judicial confirmation from the competent AG. For that reason, at the end
of an inspection, the BKartA usually asks whether the representatives of
the undertaking consent or object to the seizure.
b. Monetary Fine Proceedings
Once the BKartA has indications of a potential competition law
infringement punishable with a fine, 29 it may, at its discretion, initiate
monetary fine proceedings. As noted above, this procedure is governed
by the OWiG and the StPO, which confer upon the BKartA the same
rights and obligations as those of a public prosecutor in criminal
prosecutions. The BKartA may, therefore, carry out searches, 30 seize
objects 31 and interrogate persons concerned as well as witnesses. 32
26.
27.
28.
29.
30.
31.
32.
from lowest to highest, the following domestic courts are competent to
review procedural or material antitrust issues: local court (AG), regional
court (Landgericht, or “LG”), higher regional court (OLG), Federal Court
of Justice (BGH) and (for constitutional questions) the Federal
Constitutional Court (Bundesverfassungsgericht, or “BVerfG”).
GWB § 59(4).
See Siegfried Klaue, in WETTBEWERBSRECHT [WETTBR] [COMPETITION
LAW] (GWB), § 59 para. 58 (Ulrich Immenga & Ernst-Joachim
Mestmäcker eds., 4th ed. 2007).
GWB § 58.
For a list of enumerated offenses, see GWB § 81.
Strafprozeβordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987,
BUNDESGESETZBLATT [BGBL] I 1074 (1987), as amended, §§ 102-10
[hereinafter
StPO],
available
at
http://www.gesetze-iminternet.de/englisch_stpo/englisch_stpo.html.
StPO §§ 94.
See StPO §§ 48-71, 133-136a.
8
(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 undertaking’s 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
9
Throughout the search, the owners of the premises (generally the
representatives of the undertaking) have a right to be present. However,
their absence does not forestall the execution of the search. All
occupants of office space subject to the search have to tolerate the
measures lawfully associated with it, but are not obliged to cooperate. In
practice, however, there is a considerable degree of cooperation in order
to avoid the necessity of the officials (who are always accompanied by
police) forcing doors or locks open. In the unlikely case that employees
of the undertaking effectively hinder the search, BKartA officials can
have them detained. 41
(2) Securing and Seizure of Evidence
Having uncovered pieces of evidence during a search, the BKartA
may secure (sicherstellen) (if surrendered voluntarily) or seize
(beschlagnahmen) (if the person or the undertaking objects) such
40.
41.
infringements through thorough compliance programs, there are strict
legal limits constraining an undertaking’s ability to review its employees’
email communications in the course of an internal audit (even when
following a search by the competition authority). In particular, if the
undertaking has not prohibited the use of the firm’s email system for the
private purposes of its employees, it remains unclear whether a review of
email communications is permissible only if structured in a way that it
does not fall under the strict rules under Germany’s Telecommunications
Act (Telekommunikationsgesetz), which would make the review almost
impossible. In any event, such review is subject to the provisions of the
German Privacy Act (Bundesdatenschutzgesetz, or “BDSG”), which
generally prohibits data collection by an undertaking unless there is
reasonable suspicion that a crime was committed by an employee and
linked to his employment. Even though the person concerned can
voluntarily consent to such data collection under § 4a of the BDSG, it is
doubtful whether a court will consider such consent, given by an
employee to his employer, to be voluntary in nature.
This information is no longer deemed privileged according to Art. 10
Grundgesetz (German Constitution), but strict requirements exist for its
seizure pursuant to §§ 100 and 100g of the StPO. See BVerfG, March 2,
2006, NJW 976 (977-984), 2006 (Ger.), also cited in BKartA, supra
note 18, 42.
StPO
§ 164.
Gerhard
Dannecker &
Jörg
Biermann,
in
WETTBEWERBSRECHT [WETTBR] [COMPETITION LAW] (GWB), vor § 81
para. 229 (Ulrich Immenga & Ernst-Joachim Mestmäcker eds., 4th ed.
2007).
10
evidence. The BKartA may secure or seize either originals or copies of
paper documents, as well as electronic documents stored on computers
and hard disks. 42 The seizure may, however, not extend to those objects
protected by the right to refuse to give evidence, provided that such
objects are in the custody of the person claiming this privilege. 43
If during a search initiated on grounds of a particular suspected
infringement, BKartA officials discover evidence pointing to other
criminal (e.g., fraud, bribery or fiscal offenses) or administrative
offenses, such information is regarded as discovery by chance
(Zufallsfund). Such evidence may be secured or seized on a provisional
basis. 44 Final seizure requires a judicial decision. 45
Although the seizure of evidence normally requires the prior
issuance of a warrant by the competent AG, 46 the BKartA will often
seize pieces of evidence without such judicial approval on grounds of
“imminent danger,” as described above, because it may not know
beforehand what kind of evidence it will find. The undertaking or
individual affected by the seizure may at any time – including during the
search itself – request a judicial decision from the competent AG. 47
42.
43.
44.
45.
46.
47.
Hard disks/electronic files are seized only on a provisional basis (final
seizure requires a judicial decision, StPO §§ 94, 98), BVerfG Apr. 12,
2005, NJW 1917 (1921), 2005 (Ger.), which does not require the prior
sighting of their contents at the undertaking's premises, LG Bonn, Sept.
30, 2004, unpublished, cited in BKartA, Bi-Annual Activities Report
2003-2004,
BT-Drucks.
15/5790, 44,
available
at
http://dip21.bundestag.de/ dip21/btd/15/057/1505790.pdf.
Having
completed the sighting of the files, the BKartA may seize only the files
that are of potential evidentiary value (and not the entire data storage
medium). It is deemed sufficient if the BKartA uses proper keywords
and search phrases to identify such documents. LG Bonn, Mar. 16, 2005,
unpublished, cited in BKartA, id., 44. The BKartA takes the position that
the presence of the defendant’s attorney is not required to conduct the
sighting of electronic documents.
StPO § 97(2).
Id. § 108 (requiring a judicial decision if the evidence shall finally be
seized, id. §§ 94, 98).
Id. §§ 94, 98.
Id. § 98.
Id. § 98(2). The BKartA, however, generally must request judicial
approval of such seizure. BVerfG, Sept. 3, 1991, NJW 551 (552), 1992
(Ger.).
11
(3) Interrogations of Suspects/Witnesses
Since any person or undertaking suspected of a competition law
infringement is protected by the principle of nemo tenetur (“no one need
accuse himself”), the undertaking and the individuals concerned have an
absolute right to silence and need not incriminate themselves. There is
no obligation to cooperate with the BKartA. 48
Unlike the EU
Commission in its dawn raids, the BKartA does not have the right to
request oral explanations then and there. However, the BKartA is not
obligated to inform individuals of their rights if the inquiries are
restricted to “informational questioning.” 49 By contrast, if the officials
confront an individual already suspected of an infringement with these
allegations, the individual has to be instructed of his right not to selfincriminate 50 and to refuse to give evidence in certain circumstances. 51
If this requirement is not followed, any statement given may not be used
in subsequent proceedings (Beweisverwertungsverbot). 52 In the course
of a search, the necessary conditions for an interrogation of suspects or
witnesses are usually not met, and, consequently, the BKartA does not
normally carry out interrogations during searches.
(4) Attorney-Client Privilege
In general, the right to refuse to give evidence only hinders the
seizure of objects if these objects are in fact in the custody of the person
claiming this privilege. 53 Similar to EU privilege rules, privilege in
Germany is limited to correspondence with outside counsel 54 and does
48.
49.
50.
51.
52.
53.
54.
By contrast, a witness may only refuse to provide information if this
exposes him or his relatives to the risk of criminal prosecution or
monetary fine proceedings. StPO §§ 52, 55.
See Lutz Meyer-Goßner, STRAFPROZESSORDNUNG [StPO], Einl. para. 79
(53th ed. 2010).
StPO §§ 136(1), 163a(3).
StPO §§ 52-53, 55.
BGH, Feb. 27, 1992, BGHSt 38 (214), NJW 1463 (1464-1467), 1992
(Ger.) (regarding criminal investigations, but unresolved for monetary
fine proceedings); see also Dannecker & Biermann, supra note 41, vor
§ 81 para. 237.
StPO § 97(2).
It is still not entirely clear whether and to what extent correspondence
from in-house counsel with the undertaking and its management is
protected by the attorney-client privilege. See LG Bonn, Sept. 29, 2005,
12
not extend to in-house lawyers. However, the German practice differs
fundamentally from the EU approach in that it only affords the full scope
of the privilege to correspondence that is not kept at the undertaking’s
premises – therefore effectively limiting the privilege only to those
documents held by outside counsel. 55 An exception, however, exists for
communications between an undertaking and its outside counsel relating
to an on-going investigation. Such communications are deemed
privileged as “true attorney-client communications,” even if such
documents are kept at the undertaking’s premises. 56 The attorney-client
privilege when asserted during an investigation by a German competition
authority is thus, in a practical sense, constrained to the limited number
of cases in which an undertaking has already sought advice from outside
counsel after being informed of an ongoing investigation. 57
55.
56.
57.
WUW/E DE-R 1787 (1790-1793) (Ger.) (refusing to apply the privilege);
see also, Dannecker & Biermann, supra note 41, vor § 81 para. 219;
Seitz, Der Vertraulichkeitsschutz der Anwaltskorrespondenz im
europäischen Wettbewerbsverfahren [Protection of Confidentiality of
Correspondence in European Competition Law Procedure], EUROPÄISCHE
ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT [EuZW] 204 (208), 2008,
available at http://dialnet.unirioja.es/servlet/listaarticulos?tipo_busqueda
On the
=VOLUMEN&revista_busqueda=565&clave_busqueda=19.
European level, see most recently Judgment of the Court (Grand
Chamber), Case C-550/07, Akzo Nobel Chemicals and Akros
Chemicals v. Commission, Sept. 14, 2010, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0550:EN:
HTML.
This principle has been criticized by practitioners. See Rainer Bechtold
KARTELLGESETZ GESETZ GEGEN WETTBEWERBSBESCHRÄNKUNGEN
[ANTITRUST: ACT AGAINST RESTRAINTS OF COMPETITION], § 59 para. 16
(Rainer Bechtold ed. 6th ed. 2010) (in the context of administrative
proceedings).
StPO § 148: See also BGH, Aug. 13, 1973, NJW (2035-2036), 1973
(Ger.); BGH, Feb. 25, 1998, BGHSt 44 (46), NJW 1963 (1964), 1998
(Ger.); LG Bonn, Sept. 9, 2002, WUW/E DE-R 917 (918) (Ger.); MeyerGoßner, supra note 49, § 148 para. 8.
LG Bonn, Anwaltskorrespondenz [Legal Correspondence], Sept. 29,
2005, WUW/E DE-R 1787 (1789) (Ger.); LG Bonn, Der Grüne Punkt
DSD [The Green Dot DSD], Mar. 27, 2002, WUW/E DE-R 917 (918)
(Ger.). Cf. AG Bonn, Dec. 20, 2006, cited in BKartA, supra note 18, at
42 (affirming the seizure of documents drafted by an outside attorney in
preparation for a defense against criminal charges unrelated to an
investigation for anticompetitive conduct).
13
In order to avoid discussion as to whether a certain document is
privileged or not, the BKartA officials will often agree to take the
document away in a sealed envelope that will only be opened in case the
document proves indispensable to the case. When the BKartA seizes a
document protected by privilege, it will be barred from using such
evidence against the undertaking in the course of the proceedings
(Beweisverwertungsverbot). 58 Some scholars argue that the EU approach
should be applied by the national authorities as well, such that any
correspondence with outside counsel relating to the matter would be
privileged – regardless of whether the legal advice was given before or
after the undertaking was informed of the investigation. 59 However, this
line of argument has been rejected by the regional court of Bonn. 60
2. Use of Evidence or Findings from Other Jurisdictions
The BKartA is allowed to exchange information—including
confidential business information—with other German authorities,
particularly regulatory authorities. 61 When conducting an administrative
proceeding, the BKartA also has the right to request any information
pertaining to its case from “all authorities,” who, in turn, are generally
under an obligation to disclose such information. 62 The BKartA is
legally obligated to maintain the confidentiality of business secrets.
58.
59.
60.
61.
62.
BGH, Jan. 23, 1963, BGHSt 18 (227) (Ger.); Meyer-Goßner, supra note
49, § 97 para. 36, 40.
Schmidt in WETTBEWERBSRECHT [WETTBR] [COMPETITION LAW]
(GWB), § 58 para. 6 (Ulrich Immenga & Ernst-Joachim Mestmäcker
eds., 4th ed. 2007).
LG Bonn, Anwaltskorrespondenz [Legal Correspondence], May 29,
2005, WUW/E DE-R 1787 (1793) (Ger.).
GWB § 50c(1).
Gesetz über 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
Göhler ed., 15 ed. 2009).
14
Within the ECN, the national competition authorities of EU member
states may exchange (confidential) information in the application of
Articles 101 and 102 of the TFEU 63 and use it as evidence. 64 Using this
information for sanctions against natural persons is, however, only
permissible under German competition law if the laws governing the
competition agency that gathered the evidence also provide for such
sanctions. 65 Furthermore, the BKartA may request that a German AG
issues a search warrant on behalf of another ECN authority. 66
Finally, the BKartA may cooperate with other foreign competition
authorities and provide evidence, as long as the receiving authority
guarantees that the information will only be used within the context of
the object of the investigation in which the BKartA gathered the
evidence and that confidential data will be protected. Such confidential
information may only be transmitted by the foreign authority to third
parties if the BKartA consents. 67
3. Jurisdictional Reach of Evidence Gathering
The jurisdictional reach of evidence gathering in Europe has become
effectively identical to the jurisdictional reach of the BKartA, which as
previously discussed is limited by the international law principle of
territoriality. The BKartA may generally only gather evidence within the
territory of Germany. 68 In order to conduct searches and interrogate
witnesses abroad or to formally 69 request information from third parties
63.
64.
65.
66.
67.
68.
69.
Consolidated Treaty of the Functioning of the European Union, Sept. 5,
2008, O.J. (C 115) 47 [hereinafter TFEU] (replacing the Treaty
establishing the European Community under the Treaty of Lisbon).
EC Regulation 1/2003 art. 12 (1).
GWB § 50a(3).
EC Regulation 1/2003 art. 22(1); see, e.g., LG Duisburg, Aug. 22, 2006,
unpublished, cited in BKartA, supra note 18, 42.
GWB § 50b(2)(2).
This includes – as a general principle – German subsidiaries of foreign
parent companies. Cf. Eckhard Rehbinder, in WETTBEWERBSRECHT
(GWB), § 130 para. 386 (Ulrich Immenga & Ernst-Joachim Mestmäcker
eds., 4th ed. 2007); Stadler, supra note 8, § 130 para. 232-234.
While it is unclear whether informal information requests violate the
territoriality principle, the BKartA has in the past directed informal
information requests to undertakings abroad. See Klaue, supra note 27,
§ 59 para. 13; Gerhard Wiedemann, in HANDBUCH DES KARTELLRECHTS
[HANDBOOK OF ANTITRUST LAW], § 5 para. 55 (Gerhard Wiedemann ed.,
2nd ed. 2008).
15
located in a foreign country, the BKartA must revert to international
legal assistance. 70 However, the Schengen Acquis (a cooperation
agreement among EU member states and certain other European
countries) now provides for foreign legal assistance even in monetary
fine proceedings conducted by a national competition authority. 71 When
evidence is located in the territory of one EU member state, the national
authority of another member state may directly request administrative
assistance to seize that evidence from that competent other foreign
authority.
II. PENALTIES
In view of the distinction between administrative and monetary fine
proceedings, there are also differences between fining decisions and
decisions in administrative proceedings.
A.
FINING DECISIONS
For serious offenses such as hardcore cartels, 72 an individual acting
intentionally may be fined up to EUR 1 million, whereas an undertaking
participating in such an offense faces a fine that may well exceed EUR
1 million, but which must not exceed 10 percent of the undertaking’s
total (worldwide) turnover in the business year preceding the fining
decision. 73 For less serious offenses, the maximum fine is EUR 100,000.
When setting the amount of the fine against an undertaking, the BKartA
will follow its 2006 fining guidelines, which take into consideration both
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 BKartA’s fining guidelines may yield a higher fine,
which is subsequently reduced to the 10 percent cap. However, the OLG
Düsseldorf, on constitutional grounds, recently interpreted this limit as a
“maximum limit” (Bußgeldobergrenze) 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.
See BKartA, 38/2006, Notice on the imposition of fines under Section
81(4) Sentence 2 of the German Act against Restraints of Competition
(GWB) against Undertakings and Associations of Undertakings,
Guidelines on the Setting of Fines, Sept. 15, 2006, available at
http://www.bundeskartellamt.de/wEnglisch/download/pdf/Bussgeldleitlin
ien-E.pdf
GWB § 81(5) (in connection with OWiG § 17(4)).
See BKartA, 9/2006, Notice of the Bundeskartellamt on the Immunity
from and Reduction of Fines in Cartel Cases, Leniency Programme, Mar.
7, 2006, available at http://www.bundeskartellamt.de/wEnglisch/
download/pdf/06_Bonusregelung_e.pdf.
OLG Düsseldorf, June 26, 2009, VI-2a Kart 2-6/08 OWi para. 601-612
(Ger.) (upholding as constitutional the 10 percent rule to be constitutional
and not referring the question to the Bundesverfassungsgericht (German
Constitutional Court)).
Hans Achenbach, in FRANKFURTER KOMMENTAR KARTELLRECHT
[FRANKFURT COMMENTARY ON COMPETITION LAW], § 81 GWB 2011
para. 245-247a; Albrecht Bach, Verschärfung von Unternehmensbußen –
ein gescheiterter Versuch [Aggravation of Fines Against Undertakings –
A Failed Attempt], in FESTSCHRIFT FÜR BECHTOLD, 1, 7-8 (Ingo Brinker
et al. eds., 2006); Bechtold, supra note 55, § 81 para. 27; Dominic Thiele,
Zur Verfassungswidrigkeit des § 81 IV GWB [Unconstitutionality of § 81
17
Pursuant to Section 81(6) of the GWB, interest begins to accrue on
the fines imposed on an undertaking two weeks after it has been served
with the fining decision. This rule is designed to deter appeals that seek
merely to postpone payment, but its constitutionality has been contested
as well. 79
In order to conclude monetary fine proceedings, the BKartA has
relied in an increasing number of cases on a new settlement procedure. 80
At its discretion, the BKartA may enter into discussions with an
undertaking suspected of an infringement and its legal counsel before
issuing a statement of objections. After reaching an agreement, the
BKartA will render its decision and impose a negotiated fine. The
BKartA requires an undertaking interested in such a settlement to plead
guilty and give all information necessary to describe the concrete
infringement and to calculate the fine – information such as its total sales
revenues, its revenues directly or indirectly linked to the infringement,
and its capacity to meet its financial obligations. For the purpose of
reaching an agreement, the BKartA will present to the undertaking its
investigation results and an upper limit of the possible fine. The
undertaking has the option of admitting to the facts of the case and
accepting a fine up to the suggested amount. If the undertaking agrees to
the settlement, a cooperation rebate of up to 10 percent will be granted.
This rather low rebate amount is aimed at preserving the incentives to an
undertaking to apply for leniency before the BKartA initiates its own
preliminary investigation.
In practice, however, the leeway for
79.
80.
Para. 4 of the GWB] WETTBEWERB IN RECHT UND PRAXIS [WRP] 2006,
999, 1002-1007; Martin Klusmann, in HANDBUCH DES KARTELLRECHTS
[HANDBOOK OF ANTITRUST LAW], § 57 para. 78-79 (Gerhard Wiedemann
ed., 2nd ed. 2008).
Bechtold, supra note 55, § 81 para. 42; Jochen Burrichter, Die
Verzinsungspflicht von Geldbußen gemäß § 81 Abs. 6 GWB n.F. [The
Interest Rate Imposed Pursuant to § 81 Para. 6 of the GWB], in
FESTSCHRIFT FÜR BECHTOLD, 97, 102-112 (Ingo Brinker et al. eds.,
2006); Peter König, in ORDNUNGSWIDRIGKEITENGESETZ, § 17 para. 48d
(Erich Göhler ed., 15th ed. 2009).
The BKartA has not issued a Settlement Notice or similar document; but
see BKartA, Fallbericht Bußgeldverfahren gegen Kaffeeröster, [Case
Report Summary of Proceedings against Coffee Roaster], Jan. 14, 2010,
available at http://www.bundeskartellamt.de/wDeutsch/download/pdf/
Kartell/Kartell09/Fallberichte/B11-018-08Fallbeschreibung.pdf?navid=38.
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
In administrative proceedings, the BKartA has a broad spectrum of
measures at its disposal:
 The BKartA may order the termination of a competition law
infringement and impose all necessary measures to that effect; 82
 The BKartA may declare that an infringement has occurred after
an infringement has been brought to an end. Such a measure may be
designed to facilitate private litigation; 83
 In case of a risk of serious and irreparable damage to
competition, the BKartA may issue appropriate interim measures when
there is prima facie evidence of an infringement; 84
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 Düsseldorf, E.ON-Ruhrgas, June 20,
2006, WUW/E DE-R 1757 (Ger.).
GWB § 32(3).
GWB § 32a(1).
19
 The BKartA may declare binding certain commitments on
undertakings that are capable of dispelling competition concerns. 85
Undertakings may also propose such commitments, but the BKartA is
not bound to accept them. 86 The BKartA may reopen the proceedings if
the underlying factual circumstances have materially changed, the
undertaking has not met its commitments, 87 or the information provided
has been discovered to be incomplete, incorrect or misleading;
 The BKartA may order the disgorgement of benefits. 88 Despite
its seemingly punitive nature, this measure is regarded as purely
administrative. 89 The economic benefits to be disgorged not only
encompass the net revenue generated because of the infraction, but also
(the monetary value of) any other benefits such as the improvement of an
undertaking’s market position. 90 Such payments are affected towards the
federal budget;
 The BKartA may under certain circumstances withdraw the
benefit of an EU block exemption; 91 and
 Recently, the Federal Ministry of Economics and Technology
proposed the introduction of an additional divestiture instrument into the
GWB. This amendment, if adopted, would provide the legal basis, under
certain conditions, for an order of divestiture against dominant
undertakings in certain markets vital to the economy, even where such
85.
86.
87.
88.
89.
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 Änderung des Gesetzes gegen Wettbewerbsbeschränkungen
[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
Mestmäcker eds., 4th ed. 2007); König, supra note 79, § 17 para. 40-44.
GWB § 32d.
20
undertakings have not abused their market positions. 92 It is doubtful,
however, whether the proposal will be signed into law in the course of
the next amendment of the GWB.
III. RECENT ENFORCEMENT ACTIVITY
Regarding horizontal agreements, the BKartA has reported a total of
76 leniency applications concerning 19 different proceedings for the
period of 2005 and 2006, 41 leniency applications in 12 cases for 2007,
35 leniency applications in 21 cases for 2008 and 50 leniency
applications in 25 cases for 2010. 93 In 2008, the BKartA carried out 20
searches at the nationwide premises of 78 companies and at 16 private
homes for evidence of alleged hardcore cartel agreements. 94 In 2010, the
BKartA conducted 17 searches of 120 companies and 5 private homes. 95
The industries involved included consumer products such as
confectionary and coffee, as well as opticians and the milling industry.
Recent fining decisions in (hardcore) cartel cases were issued against
producers of cement, decorative paper, coffee, hearing aids, contact
lenses, liquid gas, mortar, paper plates, fire trucks, printer chemicals,
steam boilers and ready-mixed concrete, as well as against distribution of
chemicals.
Following a nationwide search of 30 companies in the cement sector
in July 2002, the BKartA in 2003 issued fining decisions totalling EUR
702 million against twelve undertakings participating in the cartel and
their representatives, EUR 661 million of which was levied against the
six biggest producers. This has been the highest aggregate fine imposed
by the BKartA thus far. The undertakings had installed market allocation
92.
93.
94.
95.
Cf. Monopolkommission (Monopoly Commission), April 2010,
Sondergutachten 58, Gestaltungsoptionen und Leistungsgrenzen einer
kartellrechtlichen Entflechtung [Special Report 58, Design Options and
Performance Limits of an Antitrust Divestiture], available at
http://www.monopolkommission.de/aktuell_sg58.html.
The BKartA has not yet published similar statistics for 2009.
Press Release, BKartA, Review of 2008 - Important Developments for the
Protection of Competition (Dec. 18, 2008), available at
http://www.bundeskartellamt.de/wEnglisch/News/Archiv/ArchivNews20
08/2008_12_18.php.
Press Release, BKartA, Competition Control in 2010 - An Eventful and
Successful Year for the Bundeskartellamt (Dec. 22, 2010), available at
10/2010_12_22.php.
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 Düsseldorf, 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 Düsseldorf. 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 BKartA’s 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 Düsseldorf, June 26, 2009, VI-2a Kart 2-6/08 OWi para. 628-695
(Ger.).
22
the contracts cover 50 to 80 percent of the distributor’s gas requirements,
or for not more than 2 years if the contracts cover more than 80 percent
of the requirements. 97 On appeal, this decision was affirmed by the
BGH. 98 In June 2010, the BKartA published a report on the market
effects of its decisions in this case and concluded that an extension of the
contracting limitations was not warranted.
Proceedings initiated against seven gas providers for suspected
abusive pricing were discontinued, but only after these undertakings
effectively allowed third party access to their gas networks in spring
2006. 99 In March 2008, the BKartA initiated proceedings against 33
providers of natural gas for alleged abusive pricing to consumers. By the
beginning of December 2008, twenty-nine of these cases had been
terminated on the basis of commitment decisions. 100
In 2006, the BKartA rendered a prohibition decision against SodaClub GmbH for its abuse of a dominant position in the market for
carbonation systems used to add carbon dioxide gas to tap water. 101
Soda-Club effectively frustrated an exchange system for cartridges by
introducing a “rental system” for its own cartridges and implementing
special conditions for the filling of these cartridges. In its decision, the
BKartA required that independent retailers and filling companies be
allowed to fill Soda-Club cartridges. The OLG Düsseldorf in a
provisional ruling affirmed the BKartA’s decision, 102 but the Federal
97.
BKartA, supra note 18, 30; see also OLG Düsseldorf, 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 Düsseldorf, Apr. 12, 2006, VI-Kart 5/06 (V) (Ger.).
23
Court of Justice, in its first hearing of the case, reversed on procedural
grounds and granted suspensive effect to Soda-Club’s appeal. 103
However, in a later ruling in March 2008, the Federal Court of Justice
then prohibited the “rental system” and even required Soda-Club to label
its cylinders with the express statement that independent retailers and
filling companies could refill them. 104
Following a dawn raid in June 2007, the two private broadcasting
groups in Germany, RTL and ProSiebenSat.1, in December that same
year accepted a fining decision imposing an aggregate fine of EUR
216 million. The BKartA had uncovered evidence of anticompetitive
discount agreements with media agencies and the advertising industry.
The vertical rebate schemes provided, inter alia, for retroactive rebates
and “kick-back” payments if the media agencies placed a high quota of
their advertising budget with one of these two broadcasting groups – who
together account for 80 percent of the televised commercial market.
In 2009, the BKartA focused on recommended resale prices. In three
cases totalling EUR 24.7 million in fines, the BKartA came to the
conclusion that certain undertakings had gone beyond a lawful
recommendation of the retail price, either engaging in unlawful resale
price maintenance or applying undue unilateral pressure to force trading
partners to observe a certain retail price. 105 While unilateral retail price
recommendations are permissible under current law, all further price
maintenance measures, such as repeated discussions on retail prices or
the supply of sample calculations by manufacturers, are scrutinized by
the BKartA. The authority analyzes whether the recommendations in
such circumstances produce the same effect as a fixed or minimum sale
price resulting from pressure from, or incentives offered by, any of the
103. BGH, Soda-Club, Aug. 17, 2006, BGHZ 169, 52, WUW/E DE-R 1802
(1803-1805) (Ger.).
104. BGH, Soda Club II, Mar. 4, 2008, WUW/E DE-R 2268 (2270-2279)
(Ger.).
105. See Press Release, BKartA, Bundeskartellamt Imposes Fine Against
Microsoft (Apr. 8, 2009), available at http://www.bundeskartellamt.de/
Press
wEnglisch/News/Archiv/ArchivNews2009/2009_04_08.php;
Release, BKartA, Bundeskartellamt Imposes Fine on CIBA Vision
(Sept. 25, 2009), available at http://www.bundeskartellamt.de/wEnglisch/
Press
Release,
News/Archiv/ArchivNews2009/2009_09_25a.php;
BKartA, Bundeskartellamt Imposes Fine on Hearing Aid Manufacturer
Phonak
GmbH
(Oct. 15,
2009),
available
at
09/2009_10_15.php.
24
parties. In January 2010, the BKartA raided 15 undertakings, including
11 retail chains, on the basis of suspected retail price maintenance
practices. This very large investigation is expected to continue, at least
into 2012.
IV.
DEFENSES/PROTECTIVE MEASURES AVAILABLE TO
TARGETS OF AN INVESTIGATION
A.
DEFENSES TO EVIDENCE GATHERING
There are generally two avenues of defense against unlawful
gathering of evidence: An appeal to the competent court against certain
measures adopted by the authorities that seeks to revoke their permission
to search or seize, or a motion to the court in a subsequent proceeding to
declare improperly obtained evidence inadmissible.
By way of example, search and seize warrants are subject to appeal,
but such appeal does not delay the execution of the respective warrant. 106
The appeal is lodged with the investigating judge who issued the warrant.
If the judge finds the appeal justified, he may overturn his previous
decision by simply revoking the warrant. Otherwise, he will submit the
appeal to the regional court, whose decision may then be further
appealed to the higher regional court. Similarly, measures taken by the
BKartA in the course of monetary fine proceedings may be appealed to
the AG Bonn. 107
In administrative proceedings, the undertaking concerned may also
appeal orders (“Verfügungen”) by the BKartA to the OLG Düsseldorf. 108
While such an appeal usually does not have suspensive effect, the court
may grant a delay of execution if there are serious doubts as to the
legality of the decision appealed, or if enforcement of the order causes
undue hardship on the undertaking concerned. 109
Not every violation of the rules of gathering evidence (as described
above) will result in such evidence being inadmissible in the on-going
proceedings. 110
According to the jurisprudence in criminal
investigations, a decision about the (in)admissibility of improperly
obtained evidence depends on a balancing of the state’s interests in the
106.
107.
108.
109.
StPO §§ 304, 306-310, 311a.
OWiG §§ 62(1), 68.
GWB § 63(1).
Id. § 65(3); see OLG Düsseldorf, Blitz-Tip, Aug.8, 2001, WUW/E DE-R
723 (Ger.).
110. See BVerfG, June 30, 2005, NStZ 46 (47), 2006 (Ger.).
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
111. Meyer-Goßner, supra note 49, Einl. para. 55a.
112. See StPO § 136(1); BGH, Feb. 27, 1992, BGHSt 38 (214), NJW 1463
(1464-1467), 1992 (Ger.).
113. StPO § 136a(3)(2)–a scenario very unlikely to take place in the course of
an alleged competition law infringement.
114. Id. § 97; see also BGH, Jan. 23, 1963, BGHSt 18 (227) (Ger.).
115
Section
29
of
the
Adminstrative
Procedure
Act
(Verwaltungsverfahrensgesetz, or “VwVfG”)
116. KG, L’Air Liquide, Aug. 19, 1986, WUW/E 3908 (3911) (Ger.); OLG
Düsseldorf, Anzeigenpreise (Ad Prices), July 5, 1977, WUW/E OLG
1881 (1887) (Ger.).
117. GWB § 72(1).
118. See OLG Düsseldorf, Anzeigenpreise (Ad Prices), July 5, 1977, WUW/E
1881 (1887) (Ger.); BKartA, Legett & Platt/AGRO, Sept. 29, 2004,
WUW/E DE-V 1048 (1049) (Ger.).
26
disadvantages to its competitive situation if it were disclosed. 119
However, the court will disregard those portions of the file to which
access has not been granted. 120
In monetary fine proceedings, the suspect himself does not enjoy a
right of access to the documents in the possession of the BKartA.
Instead, such right is restricted to his counsel. 121 Such access can be
denied, however, by the BKartA if (and as long as) it would jeopardize
the objective of an ongoing investigation. 122 In any event, access to the
file will be granted once the BKartA has reached a preliminary
determination and serves the suspect with a statement of objections.
During monetary fine proceedings, third parties who may have been
injured by the alleged infringement may also request access to the
BKartA’s files through their counsel. 123 The injured party must
demonstrate a legitimate interest to have access to the information
contained in the requested file. This is generally accepted to be the case
if the injured party seeks to establish to what extent it might be able to
pursue a private damages claim. 124 However, such access will not be
granted if such right is outweighed by the conflicting interests of the
suspect of the infringement or other persons (i.e., third party business or
trade secrets) and can be refused if the BKartA’s fact-finding would be
compromised or its proceedings would be considerably delayed. 125
According to section F(I), paragraph 22 of its Leniency Notice, the
BKartA intends to generally “refuse applications by private third parties
for file inspection or the supply of information, insofar as the leniency
application and the evidence provided by the application are concerned.”
119. OLG Düsseldorf, Energie-AG Mitteldeutschland, Jan. 22, 2003, WUW/E
DE-R 1070 (1072) (Ger.).
120. GWB § 72(2)(3).
121. See OWiG § 46(1) in combination with StPO § 147(1). Obviously,
nothing will bar the attorney from passing on the information obtained to
his client. If the suspect is not represented by a lawyer, the BKartA
enjoys the discretion to grant him access to its files. See OWiG § 49(1).
122. StPO § 147(2). This may be the case if the BKartA is preparing specific
measures of investigation which rely on the element of surprise. See LG
Bonn, Oct. 9, 2006, cited in BKartA, supra note 18, 42-43.
123. OWiG § 46(3), in connection with StPO § 406e.
124. Meyer-Goßner, supra note 49, § 406e para. 3; OLG Koblenz, Mar. 9,
1990, NStZ (604-605), 1990 (Ger.).
125. StPO § 406e(2).
27
This is a mere statement of intention, and in practice the BKartA will
usually examine the conflicting interests on a case-by-case basis. 126
In the decorative paper-case discussed above, a customer of one of
the alleged infringers requested access to the files of the BKartA. The
authority only partially approved the request, refusing access to business
secrets, internal notes and information provided by the undertakings in
the course of their leniency applications. On review of a challenge to
this restriction, the AG Bonn 127 took a narrower view of the protection
against disclosure of such documents under German law, considering
only business secrets and internal documents exempt from disclosure.
Under this view, at least some information provided under the leniency
regime would be accessible to potential plaintiffs seeking to substantiate
their alleged damage claims. 128 However, the court was concerned
whether its interpretation of the law was in line with the principle of
effectiveness of the European antitrust rules and also with articles 11 and
12 of EC Regulation 1/2003. The court thus sought a preliminary ruling
by the Court of Justice of the European Union (“ECJ”) under article 267
of the TFEU. The case is still pending. 129 Until the ECJ issues a
decision, the BKartA’s officially stated position is not to grant access to
parts of its files concerning information submitted under the leniency
program.
Access to the BKartA’s files by the general public is further
governed
by
Germany’s
Freedom
of
Information
Act
(Informationsfreiheitsgesetz, or “IFG”). 130 The public’s general right to
access information is limited, however, by section 3.1(d) of the IFG
“where disclosure of the information may have detrimental effects on . . .
[the] monitoring or supervisory tasks of the . . . competition . . .
126. Cf. T-2/03, Verein für Konsumenteninformation VKI v. Commission,
[2005] E.C.R. II-01121, ¶¶ 69-74, 82-87 (requiring institutions to assess
the information sought in information requests when deciding whether to
grant the information request), available at http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=CELEX:62003A0002:EN:HTML.
127. Decision pursuant to OWiG § 62(1)(1).
128. AG Bonn, Aug. 4, 2009, 51 Gs 53/09, para. 8 et seq. (Ger.).
129. The pending case has the reference number C- 360/09. See the opinion of
Advocat General Mazák, Case C-360/09, Pfleiderer AG v.
Bundeskartellamt, Dec. 16, 2010.
130. See Informationsfreiheitsgesetz [Freedom of Information Act], Sept. 5,
2005, BUNDESGESETZBLATT [BGBL] I 2722 (2005) [hereinafter IFG],
available
at
http://www.gesetze-iminternet.de/englisch_ifg/englisch_ifg.html.
28
authorities.” In addition, section 3.7 recognizes that the confidentiality
interests of third parties could outweigh the public’s need for access, at
least until sufficient time has passed. 131
V.
CRIMINAL INVESTIGATIONS
In Germany, only bid-rigging constitutes a criminal antitrust offense.
In case of a public tender for the supply of goods or commercial services
by public authorities, 132 bid-rigging is punishable under section 298 of
the German Criminal Code (Strafgesetzbuch, or “StGB”), or in a private
tender as fraud pursuant to section 263 of the StGB. 133 However, these
criminal provisions only apply to the individual(s) culpable of having
rigged the bid, whereas undertakings which engage (through their
employees) in such practices are only subject to monetary fine
proceedings.
A.
ENFORCEMENT STRUCTURE/GOVERNMENTAL AUTHORITIES
1. Description of Enforcement Structure/Responsible
Authorities
Two entities are responsible for the prosecution of bid-rigging
depending on whether the investigation is directed against an individual,
against a legal person (i.e., an undertaking) or an association of persons:
If an investigation is directed against an individual, the BKartA is
required by law to refer the proceedings to the public prosecutor 134 who
then has exclusive jurisdiction to bring the individual to trial for criminal
charges. Even if the alleged conduct also constitutes an administrative
offense under the GWB, the public prosecutor will base the indictment
only on the violation of the StGB taking precedence over the
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
administrative offense. 135
If the investigation is either directed
exclusively against an undertaking, or against both an undertaking and its
representatives who participated in the bid-rigging process, the BKartA
remains competent to prosecute the undertaking and to impose a fine for
the administrative offense. 136 The undertaking itself is not held
criminally liable for the infractions committed by its representatives.
Although the competences of both the BKartA and the public
prosecutor are seemingly clear cut, when investigating bid-rigging
allegations a number of practical difficulties occur. For example, it is an
open question whether a joint search conducted by the BKartA and the
public prosecutor requires two separate search warrants. Similarly, it
remains unclear which agency in a joint search may in fact seize pieces
of evidence and store them after the search. In practice, control of the
investigation is generally amicably coordinated between the two
authorities and they may even split their efforts towards different objects
(i.e., premises) of a search.
2. Jurisdictional Reach of Authorities
The jurisdictional reach of the StGB is generally confined to the
German territory. 137 Accordingly, Sections 263 and 298 of the StGB are
applicable to all criminal offenses committed in Germany, which is the
case if either the act of the offense took place or its effects are felt within
the territorial borders of Germany. These conditions will generally be
met in case of tender offers by German public authorities and private
tenders for goods or commercial services that are to be supplied in
Germany.
B.
EVIDENCE GATHERING
When prosecuting bid-rigging offenses, both the BKartA in its
monetary fine proceedings against an undertaking and the public
prosecutor in its preliminary proceedings to indict an individual largely
apply the same rules with respect to evidence gathering.
135. OWiG § 21(1); see also BGH, Frankfurter Kabelkartell [Frankfurt Cable
Cartel], Nov. 4, 2003, WUW/E DE-R 1233 (1234), NJW 1539 (1540),
2004 (Ger.).
136. OWiG § 30(4)(2); GWB § 82.
137. Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998,
BUNDESGESETZBLATT [BGBL] I 945 (1998), §§ 3 [hereinafter StGB],
available at http://www.iuscomp.org/gla/statutes/StGB.htm.
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
coordinate their efforts to avoid unnecessary duplication of their work
and conflicting decisions. 143
4. Jurisdictional Reach of Evidence Gathering
When gathering evidence for criminal proceedings, the public
prosecutor is bound by the strict principle of territoriality. He is only
entitled to gather evidence that is physically located in Germany. 144
Therefore, witnesses staying abroad may be interrogated, or documents
located in other countries may be produced, and such evidence
introduced into national criminal proceedings, only through international
assistance.
With regard to other EU member states, such assistance has recently
been facilitated. Under the Convention on Mutual Assistance in
Criminal Matters between the Member States of the European Union 145
any type of procedural document may be sent directly by post to an
addressee who is present in the territory of another Member State. In
addition, the Convention allows for a spontaneous exchange of
information, which allows the competent authorities of member states to
exchange information relating to criminal offenses without an official
request to that effect. 146
However, the authority providing the
information may impose conditions on the use of such information, and
any personal data transmitted under the Convention may only be used for
the purpose of the particular proceedings or other judicial and
administrative proceedings directly related to that purpose for which the
request was made. 147
143. Cf. No 242 of the Richtlinien für das Strafverfahren und das
Bußgeldverfahren (RiStBV) [Guidelines for Criminal and Administrative
Offense Procedures], January 1, 1977, as amended.
144. Cf. Meyer-Goßner, supra note 49, Einl. para. 210.
145. May 29, 2000, 2000 O.J. (C 197), 3-23, entered into force on Aug. 23,
2005 and became effective in Germany on Feb. 2, 2006 [hereinafter
Convention on Mutual Assistance], see BGH, Mar. 15, 2007, NStZ 417,
2007 (Ger.).
146. Convention on Mutual Assistance art. 7.
147. Id. at art. 23.
32
VI.
PENALTIES/LENIENCY
A.
TYPES AND RANGES OF PENALTIES
An individual convicted of bid-rigging faces either a term of
imprisonment for up to five years or a (criminal) fine. Both types of
sanctions are applied in practice. The calculation of the amount of the
fine differs significantly from the calculation in the BKartA’s monetary
fine proceedings. It is based on daily rates from five to up to 360 days,
with rates ranging from EUR 1 to EUR 30,000 per day, depending on the
income of the individual. 148 In practice, criminal fines are fixed at
comparatively moderate levels. If the conviction is extended to fraud
charges, aggravating factors may yield a term of imprisonment from 6
months up to 10 years. This may be the case if, inter alia, the infraction
causes economic loss of great magnitude. 149
In addition, a criminal court may order measures of reform and
prevention such as professional disqualification. 150 Any conviction will
also be recorded in the Federal Central Register of Crimes and where the
penalty involves more than 90 days of either imprisonment or fine, the
conviction will be included in the individual’s clearance certificate
(Führungszeugnis), which might be requested by persons or
organizations in a number of contexts, such as when applying for a
position.
1. Leniency Programs
A leniency application either made by an individual or the
undertaking that employs him vis-à-vis the BKartA has no effect on a
potential criminal prosecution of that individual. In the event of such an
application, the BKartA becomes incompetent to prosecute the individual
and, via the procedure noted above, has to refer the proceedings to the
public prosecutor. An individual charged with bid-rigging may,
therefore, only seek an “arrangement” with the public prosecutor and the
judge. To this effect, the legislature introduced a form of “plea
bargaining” procedure into the StPO as of January 1, 2010. 151 It replaces
148. StGB § 40(2).
149. Courts have assumed this to be the case for losses amounting to EUR
50.000 and above. See BGH, Oct. 7, 2003, BGHSt 48 (360), NJW 169171, 2004 (Ger.).
150. StGB §§ 61-67.
151. StPO § 257c.
33
the informal procedure previously applied by the courts and the
prosecution. 152 If the judge deems it adequate, she may suggest an
arrangement regarding the continuation of proceedings including the
legal consequences, but not the conviction itself. The judge will then
announce the possible content of an arrangement (which may include
indicating the envisaged minimum and maximum sentence). The exact
verdict, however, remains in the sole competence of the judges. If the
accused and the public prosecutor agree, the arrangement takes effect. In
general, the arrangement will involve a guilty plea of the accused, who
does not, however, waive his right of appeal.
B.
RECENT ENFORCEMENT ACTIVITY
Because bid-rigging is not covered by the BKartA leniency program,
there are a limited number of decisions issued by the BKartA concerning
this conduct, none of which were brought to the BKartA’s attention on a
voluntary basis. 153 The most recent criminal statistics provided by the
Federal Criminal Police Office for 2009 show a total number of 50
registered cases of bid-rigging, which was an increase of 8 cases with
respect to 2008. 154
Moreover, very few of these decisions are published. 155
In
August 2002, together with investigating officers from the public
prosecutor’s office, the BKartA searched several companies and private
premises in the sector of pyrotechnic products and small fireworks on the
suspicion of cartel and submission agreements. When the case was
152. See BGH, Mar. 3, 2005, BGHSt 50 (40), NJW 1440 (1443), 2005 (Ger.)
(where the BGH asked the legislature to act on this issue).
153. Christof Vollmer, Experience with Criminal Law Sanctions for
Competition Law Infringements in Germany, in CRIMINALIZATION OF
COMPETITION LAW ENFORCEMENT, 257, 266 (Katalin J. Cseres et al. eds.,
2006). However, of the two pending cases reported for the period of
2007/2008 in the most recent activity report by the BKartA, one has
apparently been notified to the BKartA through a leniency application.
BKartA, Bi-Annual Activities Report 2007-2008, BT-Drucks. 16/13500,
68, 153, available at http://dip21.bundestag.de/dip21/btd/16/135/
1613500.pdf.
154. Polizeiliche Kriminalstatistik 2009, Bundesrepublik Deutschland [Police
Crime Statistics 2009, Federal Republic of Germany], 41, available at
http://www.bka.de/pks/pks2009/download/pks-jb_2009_bka.pdf.
155. For a recent case, see LG Düsseldorf, Towing Services, Mar. 8, 2007,
WuW DE-R 2087-2090 (Ger.).
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 Prosecutor’s
Office jointly searched a large number of companies in the waste
management sector for alleged bid-rigging for service contracts tendered
by Der Grüne 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 Prosecutor’s 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.
156. BKartA, Bi-Annual Activities Report 2001-2002, BT-Drucks. 15/1226,
44, 143 available at http://dip21.bundestag.de/dip21/btd/15/012/
1501226.pdf; BKartA, supra note 42, 36.
157. BKartA, supra note 42, 36, 179.
158. BKartA, supra note 153, 153.
159. Id. at 68.
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 party’s interest in private redress. A court can also refuse access
if its fact-finding may be compromised or its proceedings considerably
delayed. 162
VII.
USE OF EVIDENCE OBTAINED IN GOVERNMENTAL
INVESTIGATIONS IN FOLLOW-ON PRIVATE
LITIGATION
Since the 2005 amendment to the GWB, private damage claims in
hardcore cartel cases have evolved from a state of practical inexistence
into a viable second antitrust enforcement mechanism. Germany has
become an interesting forum for claimants for a number of reasons,
including the non-availability of the pass-on defense. 163 The most
important private claims currently pending before German courts
concern the hydrogen peroxide and cement cartels, with provisional
claims totalling EUR 643 million and EUR 176 million, respectively,
without interest. In 2009, the BGH confirmed the admissibility of the
damage claim against the cement producers and thereby removed doubts
regarding the admissibility of unspecified cartel damages claims. 164
The amendment to the GWB has provided new prospects for private
plaintiffs to enforce their rights to compensation for infringements of
both German and EU competition law. Prior to these changes, successful
160.
161.
162.
163.
164.
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
Justice’s 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 Düsseldorf, Zementkartell [Cement
Cartel], May 5, 2006, WUW/E DE-R 1755 (1757) (Ger.).
37
revision of the GWB in 2005, as this would be contrary to the principle
of “ne bis in idem” (i.e., no repeated prosecution for the same offense). 169
This binding effect also needs to be considered by potential leniency
applicants. In its practice, the BKartA differentiates between an
applicant receiving full leniency, i.e., immunity, and those undertakings
receiving partial leniency, i.e. a reduction of the fine. 170 In a full
leniency situation, the BKartA will close its proceedings without
adopting a formal decision against the immunity applicant. Therefore, a
private plaintiff cannot rely on section 33(4) of the GWB to prove
alleged anticompetitive behavior by the defendant undertaking. For
undertakings receiving partial leniency, however, the BKartA renders a
decision against them.
Because the decision will establish the
infringement, this finding will be binding on any civil court in
subsequent follow-on damage claims. Similarly, in the course of a
settlement, the BKartA also issues a formal decision, at least in short
form. Therefore, while the settlement procedure may not include
unnecessary facts which might be of relevance for the establishment of
causation or quantum of damage, a settling undertaking cannot
completely avoid the binding effect of section 33(4) of the GWB.
A.
ADMISSIBILITY AND DISCOVERABILITY OF STATEMENTS,
DOCUMENTS AND INFORMATION PROVIDED TO THE
GOVERNMENT
German civil procedure does not rely on pre-trial discovery or other
discovery procedures available to private parties. A party generally
cannot collect evidence from its adversary prior to a lawsuit. Instead, the
plaintiff has to substantiate its case and to make reference to the potential
pieces of evidence in its support when bringing his damage claim to
court. 171 The process of evidence gathering – in particular the collection
of witness statements – is then preserved for the time of trial. 172 Unlike
in other legal regimes, cross-examination of witnesses is limited to the
extent deemed appropriate for the clarification of the facts. 173
169. See Eckard Rehbinder, in KARTELLRECHT [ANTITRUST LAW], § 33 GWB
para. 31 (Ulrich Loewenheim, Karl M. Meessen & Alexander
Riesenkampff eds., 2nd ed. 2009).
170. See BKartA, supra note 76, ¶¶ 3, 5.
171. See ZPO §§ 129, 130(5), 142, 422.
172. See id. § 273(2).
173. See id. § 397(1).
38
Since the plaintiff – even when pursuing a damage claim for
competition law infringements in a follow-on action – will struggle with
his burden of proving causation and quantum of damages, the plaintiff
will generally seek to gain access – through the court 174 – to either the
BKartA’s file or the defendant’s documents.
1. Access to Files of the BKartA
In general, a civil court has the discretion under section 273(2)(2) of
the ZPO to request from administrative authorities the production of
certain documents or official statements regarding previous
administrative proceedings. However, because there are no ex officio
investigations by a German civil court, one of the parties has to explicitly
or implicitly rely on such documents. If the request concerns
voluminous files, the party needs to specify those pieces of the file that
will likely contain the facts the party intends to rely upon. 175
The BKartA will deal with such requests according to the rules of
administrative assistance 176 and may only refuse to comply in limited
circumstances. By consequence, the BKartA will usually have to
provide the court with information pertaining to the existence of the
anticompetitive agreement, the products and geographical markets
concerned, and any information relevant to determining the level of gains
attributable to the cartel.
In addition, the court may – upon specific request by one of the
parties and in its own discretion – demand the production of the
BKartA’s file, pursuant to section 142(1)(1) of the ZPO. 177 While the
174. For access to the files of the BKartA in the course of monetary fine
proceedings under StPO § 406e, supra note 123 and accompanying text.
175. See OLG Hamm, July 31, 2001, NJW-RR 504, 2002 (Ger.).
176. Verwaltungsverfahrensgesetz [Administrative Procedure Act], Jan. 23,
2003, BUNDESGESETZBLATT [BGBL] I 102 (2003), §§ 5, 7 (Ger.), as
amended [hereinafter VwVfG], available at http://www.gesetze-iminternet.de/vwvfg/.
177. The BKartA should be regarded as a “third party” in terms of § 142 of the
ZPO. See Urs Peter Gruber & Erik Kießling, Die Vorlagepflichten der
§§ 142 ff. ZPO nach der Reform 2002 - Elemente der “discovery” im
neuen deutschen Gerichtsverfahren? [The Reporting Requirements of
§§ 142 et seq. ZPO after the 2002 Reform—Elements of the “Discovery”
in the New German Court Proceedings?], ZEITSCHRIFT FÜR ZIVILPROZEß
[ZZP], 305 (321-322), 2003; but see Reinhard Greger, in
ZIVILPROZESSORDNUNG [CODE OF CIVIL PROCEDURE], § 142 para. 3
(Richard Zöller ed., 28th ed. 2010).
39
requirement to specifically identify the document sought was first
interpreted as to eliminate exploratory fact findings (i.e., “fishing
expeditions”), it has now been acknowledged that such requests may be
necessary to establish whether or not there is a claim. 178 Because a
document must be identified in a way that the person in its possession
can readily identify it as the one requested, 179 as a matter of practice the
party seeking documents from the BKartA will usually send its counsel
to inspect the BKartA’s files and then substantiate which precise
documents the court should request for the civil proceeding.
Furthermore, the plaintiff could identify a particular document held
by the BKartA as evidence, pursuant to section 432 of the ZPO, and
effectively ask the court to request that specific document from the
BKartA. In this circumstance, cooperation by the BKartA would also be
governed by the rules on administrative assistance.
Finally, the IFG, confers on “everyone” a right of access to files held
by federal authorities. While this right is afforded without any
prerequisites, the Act provides for numerous exceptions, some of which
apply in the field of competition law when private parties seek direct
access to files held by the BKartA. 180 The IFG expressly exempts all
information, the release of which would negatively impact the control
function of the competition authorities. 181 Any information exchanged
within the ECN and with other foreign agencies will likely be regarded
as “international negotiations”, which are also exempted from public
access. 182 Finally, with respect to leniency applications, the IFG provides
for an exemption if the file contains information that was confidentially
submitted to the (competition) authority. 183
178. BGH, Aug. 1, 2006, GEWERBLICHER RECHTSSCHUTZ UND
URHEBERRECHT [GRUR] 962 (966), 2006 (Ger.).
179. Astrid Stadler, in ZIVILPROZESSORDNUNG [CODE OF CIVIL PROCEDURE],
§ 142 para. 4 (Hans-Joachim Musielak ed., 8th ed. 2011).
180. However, the IFG does not supplant the information rights granted by, for
example, §§ 406e and 475 of the StPO. Therefore, private plaintiffs who
have suffered an economic loss due to an alleged anticompetitive
agreement generally qualify to have access to either the files of the
BKartA in the monetary fine proceedings or the public prosecutor’s
criminal case file for bid-rigging cases.
181. IFG § 3(1)(d).
182. Id. § 3(3)(a).
183. Id. § 3(7). See also Deutscher Bundestag [German Bundestag], Entwurf
eines Gesetzes zur Regelung des Zugangs zu Informationen des Bundes
(Informationsfreiheitsgesetz—IFG) [Draft Law Regulating Access to
40
2. Access to Files of the Defendant
In general, the party not bearing the burden of proof is not required
to supply the other party with evidence in support of its claim. The
German rules of civil procedure only provide for very limited exceptions
to this rule.
Pursuant to section 422 of the ZPO, the adversary is under an
obligation to produce documents if the party bearing the burden of proof
is entitled, under the provisions of German civil law, to ask for the
surrender or production of such documents. Section 422 of the ZPO,
therefore, is not an independent statutory basis upon which the party
bearing the burden of proof can rely. Indeed, German civil law does not
otherwise provide for a statutory basis to ask for the surrender or
production of documents in competition law cases (and certainly not
such documents as leniency applications), so the application of section
422 is restricted to exceptional situations. However, where an adversary
relies on a specific document for his defense, he may be ordered by the
court to produce this document under section 423 of the ZPO.
A private plaintiff may also ask the court to order the defendant to
produce certain documents in its possession (e.g., a leniency application)
pursuant to section 142 of the ZPO, and in seeking such documentation
has to sufficiently identify the precise documents. The practical
relevance of section 142 in competition cases is quite low for two
reasons. First, any order to produce the documents is in the discretion of
the court. When exercising its discretion, the court will take into account
the defendant’s legitimate interest not to incriminate himself, as well as
other aspects. 184 Second, even if the court were to issue the order, the
production of the documents at issue cannot be enforced. Noncompliance with such an order may either be appraised freely by the
judge during the consideration of the evidence (under section 286 of the
ZPO), or the plaintiff’s allegations may even be considered as proven
(under section 427(2) of the ZPO). 185 This latter option is quite remote
Information from the Federal Government (Freedom of Information
Act—IFG)], BT-Drucks. 15/4493, 1, 11-12 (2004), available at
http://dip21.bundestag.de/dip21/btd/15/044/1504493.pdf.
184. The Federal Supreme Court has recently ruled that a court may order the
production of documents pursuant to § 142 of the ZPO without the
conditions of § 422 of the ZPO being met. See BGH, June 26, 2007,
NJW 2989 (2991), 2007 (Ger.).
185. BGH, June 26, 2007, NJW 2989 (2992), 2007 (Ger.).
41
in cases where the plaintiff has no reasonable basis on which to describe
the precise contents of the documents at issue.
B.
EFFECT/ADMISSIBILITY OF GUILTY PLEA IN PRIVATE
LITIGATION
Negotiated fining decisions issued by the BKartA under the new
settlement procedure have a binding effect for follow-on damage claims.
Therefore, a guilty plea by an undertaking does not forestall private
litigation. Still, although even a curtailed fining decision will necessarily
contain the finding of an infringement of the competition rules, a
settlement decision may nonetheless be of limited use to potential private
plaintiffs.
When a consent agreement is reached early in the
proceedings, the BKartA is unlikely to engage in further ex officio
investigations. By consequence, neither the decision nor the file of the
BKartA will contain many details regarding the specific involvement of
the undertakings concerned and the precise effect of the anticompetitive
agreement on the market. This kind of information is, however, crucial
for the success of any private damage claim, because the plaintiff bears
the onus of proof for, inter alia, the causation and the quantum of damage
sustained by the infringement.
C. JOINT DEFENSE AGREEMENTS
There is no established practice or use of joint defense agreements in
Germany. While these agreements have become more important – and
are often entered into – in trans-Atlantic competition cases, under the
German rules of civil procedure this type of agreement will not affect the
very limited attorney-client privilege afforded in private damage claims.
In this respect, the lack of pre-trial discovery in Germany and the
procedure of evidence gathering under the auspices of the court make
such arrangements irrelevant.
In private damage actions, the attorney-client privilege may only be
invoked by an attorney if she is summoned as a witness. 186 The same
applies if a plaintiff seeks to request documents in an attorney’s
possession through the court. The attorney, as a “third party”, may
invoke her right to refuse to give evidence. 187
Therefore, any
information in the possession of the attorney that directly relates to the
186. See ZPO § 383(1)(6).
187. See id. § 142(2); see also Greger, supra note 177, § 383 para. 19.
42
pertinent case will generally be protected. By contrast, such documents
in the possession of the defendant or a third party will be “discoverable”,
but only to the very limited extent described above.
In monetary fine proceedings, the “true attorney-client privilege” is
afforded to any information prepared for defense purposes. Once the
suspected tortfeasor is aware of an on-going investigation and undertakes
the first steps for its defense, all documents – whether drafted by the
undertaking, its attorney or even third parties – are privileged. 188 It has
been accepted by the courts that such documents are protected whether
they are under the custody of the attorney, the client, or third parties.
Therefore, in monetary fine proceedings, neither the undertaking nor the
attorney waive the “true attorney-client privilege” if the information is
transmitted to third parties.
D. RECOGNITION OF CONFIDENTIALITY/INVESTIGATIVE
PRIVILEGE BY COURTS
Pursuant
to
the
principle
of
party
presentation
(Beibringungsgrundsatz), there is no investigative privilege afforded to
the courts. Indeed, the court may not order ex officio the taking of
evidence, nor may it even contemplate facts that were not previously
introduced by the parties. A court may only base its judgment on the
facts asserted by one of the parties and may only question the validity of
a particular fact if it is disputed between the parties. Therefore, the
parties effectively control the facts of the case and likewise have to
substantiate those facts pertinent to their claim by referring to the
appropriate pieces of evidence.
Because the court considers the case both from a factual as well as a
legal perspective, it will encourage the parties to timely and fully plead
their case and, in particular, identify the relevant pieces of evidence. 189
While the members of the court are allowed to ask questions to that
effect, a party may challenge such a question as inadmissible. The court
will then decide the issue without the possibility of an appeal. 190
188. See OLG Frankfurt, June 21, 2005, NStZ 302 (303), 2006 (Ger.); Armin
Nack, in KARLSRUHER KOMMENTAR ZUR STRAFPROZESSORDNUNG § 97
para. 24 (Gerd Pfeiffer ed., 6th ed. 2008); Johannes Häcker, in
WIRTSCHAFTSSTRAFRECHT: HANDBUCH DES WIRTSCHAFTSSTRAF- UND ORDNUNGSWIDRIGKEITENRECHTS § 91 para. 54, § 93 para. 32 (Christian
Müller-Gugenberger & Klaus Bieneck eds., 5th ed. 2011).
189. ZPO § 139(1).
190. Id.. §§ 140, 355(2).
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 BKartA’s 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.

Germany - American Bar Association

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