The Bundeskartellamt published new guidelines in Q4 of 2021, namely on its leniency programme and on the setting of fines in cartel proceedings. With the new guidelines the Bundeskartellamt is modernising the way it sets fines, with the turnover achieved from the infringement of competition law remaining the key factor. On the whole, the level of fines will therefore not change significantly. The guidelines also explain the new leniency programme, which was first enshrined in law in early 2021 as part of the 10th amendment to the German Competition Act (the GWB), thus implementing the provisions of the European ECN+ Directive. In revising the supplementary guidelines, the Bundeskartellamt provided specific details on how the proceedings are conducted, on the exercise of its discretionary powers in setting the fine and on the amount of the reduction of the fine.
The amendment lays down a number of criteria for setting the amount of the fine. For example, the turnover achieved with the products or services that were the subject of the anti-competitive agreement, has now been legally enshrined as a criterion. In addition, the precautionary measures taken by a company prior to and after the infringement to prevent and uncover further infringements (compliance) may be taken into consideration under certain conditions. Finally, the Bundeskartellamt’s revised guidelines for the setting of fines give additional focus to the practice of the German courts in that in future a reference value will be determined based on the turnover linked to the infringement and the size of the company.