Thursday, April 15, 2010
Criminal Antitrust Law Enforcement in Germany: ‘The Whole Point is Lost If You Keep it a Secret! Why Didn’t You Tell the World, Eh?’
Posted by D. Daniel Sokol
Florian Wagner von Papp (UCL - Law) has a new chapter on Criminal Antitrust Law Enforcement in Germany: ‘The Whole Point is Lost If You Keep it a Secret! Why Didn’t You Tell the World, Eh?’
ABSTRACT: This is an abbreviated version of a chapter in Caron Beaton-Wells & Ariel Ezrachi (eds) Criminalising Cartels: Critical Studies of an Interdisciplinary Regulatory Movement (Oxford, Hart Publishing, forthcoming 2010). The full version of the paper will be published under the title: ‘What If All Bid-Riggers Went To Prison and Nobody Noticed? Criminal Antitrust Law Enforcement in Germany’.
The paper starts with a brief outline of the recent development of cartel criminalisation in Germany, and describes the experience with the bid-rigging offense introduced in 1997. Contrary to public perception, criminal prosecutions for bid-rigging are quite frequent in Germany, with more than 260 prosecutions and 180 convictions until 2008. Recently, the courts have begun to impose severe sanctions, including at least one unsuspended prison sentence of two years and ten months (in addition to a criminal fine of €100,000). However, the effectiveness of deterrence crucially depends on the perceived level of enforcement; and in this respect, the German experience has been disappointing to date.
The paper then turns to the discussion about the further criminalisation of competition law. Current legislation in Germany limits criminal sanctions to cases of bid-rigging. The German government does not at present perceive a need for a more encompassing cartel offense. However, the legal literature, which also tended to be skeptical of criminal enforcement in the context of competition law, appears to reconsider its position. The paper considers the scope for further criminalisation with regard to the institutional context in Germany.