On October 11, 2021, the FCO published two new guidelines, the leniency guidelines and guidelines on the setting of antitrust fines. Both guidelines reflect revisions to the Act against Restraints of Competition (“ARC”) resulting from the 10th Amendment of the ARC earlier in 2021. While the leniency program was legally anchored only by the 10th Amendment of the ARC, the FCO’s new leniency guidelines largely correspond to the former guidelines as issued in 2000 and updated in 2006. In contrast, the FCO’s new fining guidelines substantiate several important methodical changes introduced to the law by the 10th Amendment of the ARC and implement judicial practice which has in the past differed considerably from the FCO’s principles in some cases.
Calculation of Antitrust Fines
The 10th Amendment of the ARC implemented the European ECN+-Directive and defined non-exhaustive criteria to be used for the calculation of antitrust fines. These include inter alia, and in line with the European Commission’s practice, the amount of the turnover affected by the infringement.
Affected Turnover And Size Of The Company As A Starting Point
To align more closely with the jurisdictional practice of German appeal courts, the FCO will from now on determine an initial baseline value depending on the companies’ turnover affected by the infringement and the companies’ global group turnover achieved in the year preceding the infringement. To determine the baseline value, the FCO will use a percentage of the companies’ affected turnover, i.e., the companies’ turnover achieved with the products or services that were subject to the infringement during the infringement period. The percentage used will depend on the companies’ annual group turnover and range from at least 10 % for companies with an annual group turnover of up to € 100 million up to more than 30 % for companies with an annual group turnover exceeding € 100 billion.
Effective Compliance Measures Will Be Taken Into Account
In a second step, the FCO will consider aggravating or mitigating factors, as introduced to the law by the 10th Amendment of the ARC, which either relate to (i) the offence, such as the type, gravity, duration and extent of the infringement, or (ii) the offender, such as its role in the cartel, its market position, the degree of intent/negligence or previous infringements. The offender/company-specific criteria include also pre– and post-offence compliance measures which the FCO had not previously taken into account when calculating antitrust fines, but only recommended to avoid personal (organizational) liability of the company owner.
Pre-offence compliance (i.e., effective precautionary measures to prevent and detect infringements) may now be considered as a mitigating factor provided that the company’s management level was not involved. Different from its previous position, the FCO acknowledges that the effectiveness of a compliance management system cannot per se be denied merely because the precautions taken did not lead to the detection and reporting of the infringement. This can be the case if the acting person has disregarded the company’s compliance code to an extraordinary extent and with deliberate deception of his or her superiors in order to achieve personal advantages in the infringement.
Post-offence compliance (i.e., precautionary measures to effectively prevent corresponding offenses in the future) may be considered as a mitigating factor if the company convincingly demonstrates effective measures to prevent future comparable violations and its clear commitment to comply with the law.
According to the FCO’s president, Andreas Mundt, “[k]ey witnesses still play a crucial role in uncovering and prosecuting illegal cartels”. The FCO’s leniency program, which now also found its way into the law, offers cartel members full or partial immunity from antitrust fines if they cooperate with the FCO and help to uncover the cartel from the inside.
While the key principles of the FCO’s leniency program remain unchanged, the new guidelines include a number of smaller changes worth noting.
First Come, Full Immunity
As before, cartel members may be granted full immunity from fines if they continuously and fully cooperate with the FCO and are the first leniency applicant to submit evidence which would enable the FCO to obtain a search warrant or to prove the infringement.
The new guidelines specify that any active involvement in the cartel must be terminated immediately after filing the leniency application. Under the old regime, it was not entirely clear whether this duty only applied upon the FCO’s explicit request.
Further, the guidelines state that the applicant must provide any and all evidence promptly and that evidence must not be destroyed or distorted. The latter duty thereby already applies prior to the filing of the leniency application when the applicant only considers applying for leniency (e.g., following an internal investigation).
While those cartel members who forced others to participate in the cartel are still being exempted from full immunity, according to the new law and guidelines, this does not apply to ringleaders any longer, i.e., even ringleaders can now apply for full immunity.
Subsequent leniency applicants, including ringleaders or cartel members who forced others to participate in the cartel, may only obtain partial immunity (reduction in fine of up to 50 %) if the evidence they provide is of a “significant added value” for the FCO’s investigation. In this context, the guidelines emphasize that the earlier an applicant cooperates, the more valuable its information usually is. As before, moving fast in the “leniency race” is key to secure at least a significant reduction in fine.
Benefits Of The Disclosure Of Additional Facts
Pursuant to the new leniency guidelines, companies which are first to provide the FCO with additional (i.e., new) facts on a distinct part of the infringement (such as an extension of the period of the infringement or its geographic scope) or to support such facts with evidence, will profit from an exemption according to which the FCO will not use such additional (aggravating) facts against the submitting company when setting its fine, even if that company does not enjoy immunity.
Civil And Criminal Liability
As before, the new leniency program is without prejudice to any civil or criminal liability of cartel members. In particular, leniency applicants remain jointly and severally liable for any cartel damages claims. The immunity recipient, however, is privileged insofar as he remains liable only for cartel damages claims put forward by its direct and indirect suppliers.
While the FCO’s new guidelines will certainly provide more legal certainty and transparency for the companies concerned, they also fall short of the expectations with regard to several practical implications.
In this vein, the leniency guidelines expressly state that leniency may only be granted for cartels, i.e., horizontal but not vertical restraints. While this statement suggests that the FCO may want to cease its practice to informally apply its leniency program also to vertical infringements, recent FCO decisions show the opposite. In particular, the FCO just recently settled a case with consumer electronics manufacturer Bose GmbH on resale price maintenance. In addition, companies would have welcomed the possibility of an anonymous leniency application.
Certainly, the new law and the FCO’s new guidelines on the setting of antitrust fines provide the FCO with a more flexible system to set adequate fines in each individual case and better align with the jurisdictional practice of German appeal courts. However, there remains uncertainty with regard to the interpretation and application of the relevant criteria to be assessed by the FCO. In particular, while the FCO will now have to take into account also precautionary measures to prevent and detect (future) infringements, the guidelines do not provide for best practices as to when the FCO will regard a compliance system as appropriate and effective enough to consider it as a mitigating factor. Further, the FCO will continue to have discretionary power in applying and balancing relevant criteria in each individual case which may still lead to significant differences in the level of fines set by the FCO and German appeal courts. According to Andreas Mundt, though, the level of fines should not change significantly.
Editor: Katharina Apel and Anna Lubberger
 See FCO Press Release of October 11, 2021, available in English here. See also the FCO’s leniency guidelines available in English here, and the guidelines on the setting of antitrust fines available in English here.
 Directive (EU) 2019/1 of December 11, 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.