On August 19, 2026, ten years after having issued the previous version, the German Federal Cartel Office (FCO) published its updated, revised Notice on Settlements in Cartel Fine Proceedings (Merkblatt Settlement, in the following the 2026 Settlement Notice).[1]
A settlement shortens the fine proceedings: in exchange for not disputing the FCO’s account of the facts, a company receives a reduced fine and a quicker, simpler decision. Such a “deal” can be struck in relation to any competition law offence – not only cartels between competitors (horizontal offences), but also vertical or other offences, e.g., abuses of dominance or gun jumping (implementing a merger before clearance).[2]
Although the FCO does not publish official statistics on how many cases are closed with a settlement, it is, without doubt, a very popular tool in cartel fine proceedings – not least given the growing number of follow-on damages claims. For companies, the benefits are tangible: a reduction of the fine of up to 10%, shorter proceedings, and lower internal and legal costs. For the FCO, a settlement allows a slimmed-down decision. And because that decision commonly includes only minimal reasoning, follow-on damages claimants will usually have less to rely upon to substantiate their claims.
The Notice constitutes a piece of administrative guidance which binds the issuing authority – namely, the FCO – but not the courts. Even though the 2026 Settlement Notice does not overturn the fundamentals of its predecessor from 2016,[3] it considerably reshapes the settlement procedure by providing greater clarity and allowing a leaner, faster trajectory towards the termination of the investigation, while giving the FCO a great amount of discretion in the process.
No More Confession, Only Procedural Declaration
The previous notice required companies to issue a statement of confession of the infringement,[4] requiring the party not only to acknowledge a description of the offence but also the circumstances relevant for the calculation of the fine. The 2026 Settlement Notice, by contrast, requires only a procedural declaration whereby companies waive their right to dispute the FCO’s account of the facts and their role in the infringement.[5] As before, such a declaration does not include a waiver of legal remedies.
It also brings the German settlement procedure closer to the EU procedure, under which parties need only acknowledge their liability for the infringement summarily described by the Commission.[6]
Still, because the fine decision is binding on the courts in follow-on damages proceedings,[7] companies should carefully review the FCO’s account of the infringement – and, where necessary, ask for it to be revised – before settling.
Faster and Leaner: The 2026 Settlement Notice Accelerates Settlements and Heightens Efficiency
The purpose of settlements is now clearly spelled out: they are a tool to facilitate and accelerate cartel proceedings once most of the evidence has been gathered.[8] Unlike the leniency program, the settlement procedure is, thus, not aimed at gathering further evidence. Consequently, the 2026 Settlement Notice emphasizes that settlement talks will only continue as long as they still serve to facilitate and expedite the proceedings, and will otherwise be discontinued.
Accordingly, the 2026 Settlement Notice now stresses that the FCO will take into account whether it is likely that a settlement agreement can be reached with all parties.[9] While a settlement with only one of the involved undertakings is not excluded in principle, one party’s refusal may jeopardize settlement discussions for the other parties involved.
Tying in with the above goal, the 2026 Settlement Notice streamlines the procedure and makes it more flexible. In this respect, the German procedure differs from the EU’s multi-staged procedure with defined minimum time limits (two weeks, 15 working days).[10] As a general rule, the FCO will hold only one in-person meeting, and may even dispense with a meeting altogether. Instead, the FCO will take one of two routes: it will either make a settlement offer in writing and set a deadline for acceptance, or send a draft fine decision directly and invite the company to settle on that basis. This is considerably more streamlined than under the former Notice, which set no fixed deadlines or rules on timing and required a mandatory hearing, whether held in person or in writing.
Clearer: The 2026 Settlement Notice Eliminates Uncertainties Left in the Former Version
The 2026 Settlement Notice is aimed at providing greater clarity to companies contemplating a settlement.
- Firstly, the 2026 Settlement Notice now explicitly states that companies do not have a right to a settlement, which is entirely up to the FCO’s discretion.[11] The wording permitting either side to initiate discussions at any time[12] has been removed. The decision to settle thus lies entirely with the FCO, leaving undertakings with no entitlement to negotiate one.
- Secondly, the 10% discount in horizontal cartel cases remains unchanged; however, the FCO now expressly recognizes that it may apply cumulatively, and will be deducted after any rebate for formal leniency or other cooperation contribution has been subtracted.[13] By including cooperation contributions other than formal leniency (e.g., in case of non-horizontal infringements), the FCO goes beyond the previous notice, which referred only to formal leniency.[14]
- Thirdly, the 2026 Settlement Notice enhances the predictability of the fine. Under the former notice, the FCO would indicate only the maximum fine, without accounting for the rebate. The FCO will now indicate a maximum fine that already includes the settlement discount, allowing companies to anticipate and weigh the costs and benefits before issuing the procedural declaration.
- Fourthly, the 2026 Settlement Notice also strengthens the procedural rights of the parties: whereas under the former notice, the FCO would only “usually” allow, at least partial, access to its investigation file,[15] the 2026 Settlement Notice now enshrines a general right of access to the file.[16] At the same time, access to the file remains more restricted than in corresponding EU proceedings – it is available only on request, with no fixed timeframe.[17] The former notice’s exclusion of full access to the file while investigations were ongoing[18] was dropped, but the underlying principle of German criminal procedure continues to apply.
Key Takeaways
The 2026 Settlement Notice does not revolutionize the well-established settlement proceedings, but meaningfully overhauls an important piece of administrative guidance. For companies, this means:
- Prepare early. The FCO remains master of the settlement process and has full discretion over it. Unlike the EU’s fixed, deadline-driven procedure, the FCO’s informal, fast-moving process leaves little room to catch up once the window has narrowed.
- Know the price upfront. The maximum fine indicated by the FCO now already includes the settlement discount, allowing a clearer cost-benefit assessment before committing.
- Watch the other parties. The FCO now favors comprehensive settlements with all parties, so one party’s refusal may jeopardize the deal for others. Whether this will incentivize parties to align strategies remains to be seen, given the individual interests and risk exposures at play; nevertheless, exploring other parties’ willingness to settle early on may help inform individual risk assessment.
[1] Available only in German at: https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Merkblaetter/Merkblatt-Settlement_2026.pdf?__blob=publicationFile&v=3.
[2] This distinguishes the settlement framework somewhat from the German leniency framework, where formal leniency applications are only available for horizontal offences, but cooperation in case of other infringements can also lead to substantial reduction of fines.
[3] FCO, Information Leaflet, Settlement procedure used by the Bundeskartellamt
in fine proceedings, February 2016 (“2016 Notice”) available at https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Merkblaetter/Leaflet_Settlement_procedure.pdf?__blob=publicationFile&v=2.
[4] 2016 Notice, p. 2.
[5] 2026 Notice, p. 2.
[6] European Commission, Settlement Notice, 2008/C 167/01 (“Commission’s Settlement Notice”), para. 20 lit. (a).
[7] Section 33b sentence 1 of the German Act against Restraints of Competition.
[8] 2026 Notice, p. 2.
[9] 2026 Notice, p. 1.
[10] Commission’s Settlement Notice, paras. 11-17.
[11] 2026 Notice, p. 1.
[12] 2016 Notice, p. 3.
[13] 2026 Notice, p. 2-3.
[14] 2026 Notice, p. 2-3.
[15] 2016 Notice, p. 3.
[16] 2026 Notice, p. 3.
[17] Commission’s Settlement Notice, para. 16.
[18] 2016 Notice, p. 3.