German antitrust regulator publishes new fining and leniency guidelines

October 12, 2021
October 12, 2021
German antitrust regulator publishes new fining and leniency guidelines

The German antitrust regulator Bundeskartellamt published new guidelines on the setting of fines and on its leniency programme yesterday. The regulator wants to adapt more closely to the fining practice of the courts and wants to specify its leniency programme. Both guidelines are also adapted to the amendments introduced with the last reform of German competition law.

According to the Bundeskartellamt, the level of fines will essentially not change. However, in particular the following should be noted:

  • Increased uncertainty regarding the calculation of fines. Based on the previous guidelines, fines were generally calculated following a certain formula. This gave the German regulator less flexibility in individual cases, but companies were – similar to cases of the European Commission – able to anticipate the level of expected fines relatively well. Those times are gone. The regulator now only calculates the so-called basic amount based on a formula, and on this basis sets the specific fine as part of an overall assessment taking into account a number of criteria.
  • Taking into account compliance measures prior to an infringement. The new fining guidelines specify in how far compliance measures may lead to a fine reduction. Companies which have introduced compliance measures prior to an infringement (pre-infringement compliance) may already benefit from such a fine reduction, in particular where the measures have led to uncovering and reporting an infringement. Compliance measures will, however, not be taken into account where the management of a company was involved in the infringement.
  • Taking into account compliance measures after an infringement. Compliance measures introduced after an infringement (post-infringement compliance) may also lead to a fine reduction. This applies in particular where companies actively cooperate to uncover an infringement. The regulator has, therefore, introduced further incentives to cooperate: Compliance measures of companies which report infringements and cooperate with the regulator may generally lead to a fine reduction – so, these companies benefit from a fine reduction as part of the leniency programme and again because of their compliance measures.
  • Compliance measures of companies which do not cooperate are not taken into account? It is noticeable how much the Bundeskartellamt emphasizes that compliance measures may in particular have a positive effect where companies cooperate with the regulator, even though a company may for various reasons decide against cooperating with the regulator pro-actively, despite having an effective compliance programme. The extent to which the regulator is also willing to reduce fines against companies that do not cooperate remains to be seen in practice.

The new guidelines on the leniency program do not change the basic concept and rules, but contain considerable smaller amendments:

  • Ring-leader can apply for leniency: Under the 2006 leniency guidelines, the ring-leader of a cartel could not apply for leniency. This has changed. However, immunity will no longer be granted in case the leniency applicant has tried to force fellow cartel members to participate or remain in the cartel in the past.
  • Immediate termination of infringements: As in proceedings before the European Commission, the leniency applicant will be obliged to put an end to infringements immediately. An exception only applies in case the Bundeskartellamt demands a temporary continuation. Previously, the approach was the other way around: the leniency applicant was only to end the infringement after being requested to do so by the Bundeskartellamt.
  • Duty to cooperate even prior to application: Finally, the leniency applicant is obliged already at an early stage not to destroy any documents or evidence. This duty does not take effect only after the application has been filed, but already during the prior phase of considering a leniency application.

The Bundeskartellamt has published the new fining guidelines here and the new leniency guidelines here (both only in German).