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Background
Leniency programmes have long been used in antitrust law around the world and are essential in the fight against cartels. Cartels can typically only be uncovered from within. Through the leniency programme, cartel participants can be granted full immunity from fines or receive a reduction of fines if they help to uncover a cartel between competitors. In practice, the leniency programme has already helped to uncover a large number of cartels. The BKartA issued general administrative principles on leniency for this purpose for the first time in 2000.While the provisions on the leniency programme have now been anchored in law for the first time in the course of the 10th amendment to the German Antitrust Law and serve to implement the so-called ECN+ Directive, the new guidelines on the setting of fines are primarily intended to adapt the administrative principles to judicial practice, which has so far differed considerably in some cases.
Leniency Programme
In principle, any cartel participant can apply to the BKartA under the leniency programme. If cartel participants under the leniency programme help to uncover a cartel between competitors, the BKartA can grant full immunity from fines. The prerequisite for leniency is sustained and full cooperation with the BKartA. It is also important to note that full immunity from fines is only possible for the first party to cooperate. If further parties cooperate, only a reduction of the fine can be considered. However, even in this case, according information leaflet on the leniency programme (in German only) which has also been newly published, "the earlier cooperation takes place, the more valuable it usually is and the more it can be rewarded."According to the Guidelines on the Leniency Programme (in German only), for full immunity from fines the cartel participant must in principle put the BKartA in a position to obtain a search warrant by providing the information. For those cooperating afterwards, the extent of the reduction depends on the usefulness of the information and evidence and on the time of the application. The maximum reduction can be 50 percent of the fine.
Fines
As part of the implementation of 10th amendment to the German Antitrust Law, the BKartA has also revised the Guidelines for the setting of fines (in German only). In future, a percentage of the offence-related turnover will be used as the starting point for the calculation of fines, the amount of which will be based on the total turnover of the company in the last business year. The offence-related turnover is to be understood as the total turnover achieved with the products or services that were subject to the infringement in the infringement period.In addition, the guidelines now list certain offence and offender-related characteristics that are to be taken into account in the overall calculation of the fine. In addition, compliance measures taken before and after the offence can now also be taken into account when calculating the fine.
Practical consequences
According to Andreas Mundt, president of the BKartA, "companies which are involved in a cartel can more easily judge what they can expect and under what conditions they can be considered for exemption from paying a fine or having their fine considerably reduced" with the help of the guidelines on the leniency programme – the incentives to uncover cartels are thus to be increased.With regard to the Guidelines on the setting of fines, "the method of calculation, in particular, has been changed and adapted more closely to court practice. However, the turnover achieved from the infringement of competition law still remains the key factor. On the whole, the level of fines will therefore not change significantly." Therefore, it will be easier for the companies concerned to review decisions imposing fines and, if necessary, to challenge the amount of the fine imposed in future.
Finally, with regard to the consideration of compliance measures, it should be noted that these can now also be considered if the measures taken did not lead to the detection of the violation, according to the Guidelines for the setting of fines (in German only). This is the case for violations below the management level of a company "if the precautions taken did not lead to the detection and reporting solely because the acting person disregarded the compliance code of the company to an extraordinary degree and under deliberate deception of his superiors for the purpose of achieving personal advantages".
Links
Bundeskartellamt publishes new guidelines on its leniency programme and the setting of finesGuidelines on the Leniency Programme (in German only)
Guidelines for the setting of fines (in German only)
Information leaflet on the leniency programme (in German only)