C RIMINALIZATION OF C ARTELS Andreas Richter Bundeskartellamt Brno, 11 November 2008 The following...

CRIMINALIZATION OF CARTELS

Andreas RichterBundeskartellamt

Brno, 11 November 2008

The following presentation merely expresses the speakers own thoughts on the subject and should not be understood as reflecting the views of the Bundeskartellamt.

Andreas Richter Brno, 11. November 2008

Criminalization of Cartels

Overview

I. Administrative and criminal offences

II. Competition law infringements as administrative offences

III. Bid rigging



Administrative Offences Act / Criminal Code

Purpose of prosecution Purpose of prosecution


- deterrence

- repression

- absorption of financial benefit




Administrative Offences Act

- fines

Criminal Code

- imprisonment- obligations and conditions- fines

Legal consequencesLegal consequences



Procedural aspects Procedural aspects

Administrative offence Criminal offence

Prosecuting authority:- Administrative authorities

Governing principles:- Principle of non-mandatory prosecution

Effects on Leniency:- Leniency programme of the Bundeskartellamt (since 2000)

- Public prosecutor

- Principle of mandatory prosecution

- Leniency is a rare exception (by law: „Kronzeugenregelung“)




Administrative offence

Violations of minor importance

Classification of cartelsClassification of cartels

Criminal offence

Violations of core moral standards (i.e. murder)

Intermediate cases




II. Competition law infringements as administrative offences

1958: Introduction of the ARC

- No strong feelings about violation of moral standards

- Need to sanction companies

1968: „Wave of decriminalization“ (i.e. street offences)

1997: Criminalization of bid rigging

History History



III. Bid rigging (Sec. 298 CC)

Differentiated proceduresDifferentiated procedures

<< undertakings >>

- Competition authority

- Decision imposing a fine (or closing of file)Competent Court of appeal:- Cartel division of higher regional court

<< individuals >>

Prosecuting authority: - Public prosecutor

Outcome of prosecution:- Public charges (or closing of file)

Competent court:- Criminal division of local or regional court

Administrative offenceCriminal offence



III. Bid rigging (Sec. 298 CC)

A close cooperation between competition authorityand public prosecutor is necessary, i.e.

- Exchange of information

- Coordination of searches and other formal steps

Practical procedural issuesPractical procedural issues



V. Summary

Criminalization of cartels in Germany

- procedural disadvantages

- still no social consensus

Thank you for your attention !!!

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