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Criminalization of Competition Law Enforcement

Criminalization of Competition Law Enforcement

Economic and Legal Implications for the EU Member States

Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar

This timely book brings together contributions from prominent scholars and practitioners to the ongoing debate on the criminalization of competition law enforcement. Recognizing that existing remedies and sanctions may be insufficient to deter breaches of competition law, several EU Member States have followed the US example and introduced pecuniary penalties for executives, professional disqualification orders, and even jail sentences. Addressing issues such as unsolved legal puzzles, standard of proof, leniency programs and internal cartel stability, this book is a marker for future policy debate.

Chapter 14: Experience with Criminal Law Sanctions for Competition Law Infringements in Germany

Christof Vollmer

Subjects: law - academic, competition and antitrust law


Christof Vollmer1 1 INTRODUCTION For decades competition and criminal lawyers in Germany have argued about the pros and cons of criminal sanctions in the enforcement of competition law. Even in 1986 the criminalization of some competition law infringements was regarded by the legislator as going too far and not in line with the overall regulation of competition law infringements in Germany.2 But a decade later the situation had changed: in 1997, following a comparatively brief legislative process of less than two years, a new provision was introduced into the Criminal Code (CC). In order to intensify the fight against corruption, bid rigging became a criminal offence (Sec. 298 CC). Although all other competition law infringements – including all other hardcore restrictions such as price fixing or market sharing – remained administrative offences, Sec. 298 CC was the first – almost unnoticed – piece of legislation in the recent European drive against cartels.3 2 2.1 CRIMINAL AND ADMINISTRATIVE OFFENCES Differences between Criminal and Administrative Offences 2.1.1 Legal consequences The most important differences between criminal and administrative offences in German law are different legal consequences. The Administrative Offences Act (AOA) provides as the main legal consequence of administrative offences only for fines, whereas the Criminal Code allows also the imposition of imprisonment (Sec. 38 f.) and measures of reform and prevention including professional disqualification orders (Sec. 61 ff.). Pursuant to the Criminal Code it is also possible to impose a fine, but the calculation of this fine is 257 Cseres 03 chap11 257 28/8/06 08:...

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