Bundeskartellamt`s New Fining Guidelines

Today the Bundeskartellamt has published its new guidelines on the setting of fines.

Andreas Mundt, President of the Bundeskartellamt: "The Federal Court of Justice's latest decision has made it necessary for us to adjust our guidelines. On the whole, the level of fines will not change significantly. On balance fines for smaller companies which mainly sell only one product will be lower in future. For companies which are active in several markets and whose agreements concerned only a specific product of their product portfolio, the amended system of setting fines can, however, lead to higher amounts in future."

With its new fining guidelines the Bundeskartellamt provides for more legal certainty by clarifying how it will punish serious cartel law violations and on which criteria it will base the setting of fines.

Under the German Act against Restraints of Competition (GWB), a fine imposed on a company involved in a cartel can amount to up to 10% of its annual group turnover. In its current decision in the cement cartel case (Ref. KRB 20/12), the Federal Court of Justice has interpreted this provision as providing for a framework of fines which is also generally applied in German criminal and administrative offence law (see BKartA press releases of 10 April 2013 and of 19 April 2013). The Bundeskartellamt's previous guidelines, on the other hand, interpreted the 10% rule as a capping threshold, in line with European cartel case practice. An amendment therefore became necessary.

Under the new guidelines the group-wide annual turnover of the company as well as the turnover which it achieved in the cartelized market during the infringement period will be taken into consideration in the fine calculation. As a result, both the size of the company and the seriousness and duration of the infringement will be crucial factors in setting the level of fine. These criteria were already a key feature of the old guidelines but the new legal situation will focus more closely on the size of the company.

It is also still possible to waive or reduce a fine if a company that participated in the infringement submits an application for leniency. As previously, a reduction of 10% of the fine can also be granted for an agreement to have the proceedings terminated by settlement.
The new guidelines and explanations can be found on the Bundeskartellamt's website.