Friday, February 27, 2015
Eckart Bueren, Max Planck Institute for Comparative and International Private Law has written on Transactional Resolutions in German Competition Law & Merger Control.
ABSTRACT: Are transactional resolutions of competition law and merger control proceedings such as settlement procedures, leniency, transactions, commitments, and amicable agreements compatible and consistent with due process and fundamental rights of the parties concerned? This question was one of the main topics of the 2014 Congress of the International League of Competition Law (LIDC) in Torino. This paper, the German national report, provides a thorough overview of transactional resolutions in German competition law and merger control proceedings, the main practical and legal issues as well as important recent developments. After an introduction into the German competition law enforcement landscape, the paper first covers the two transactional elements in administrative offence proceedings, the leniency policy and settlements, followed by a primer on (negotiated) agreements on the further course and outcome in criminal proceedings. After that, the paper deals with settlements in administrative proceedings, especially commitments. It then summarizes important developments concerning the tension between transactional resolutions and private enforcement of competition law in the current German legal framework. This includes in particular recent case law on access to leniency and settlements declarations, followed by a brief outlook on likely changes required by the European Damages Directive. The final part of the paper concerns commitments (remedies) in German merger control proceedings. Concerning all transactional mechanisms, the report explains their legal basis, content, practical application, compatibility with the rule of law, control and transparency as well as options to appeal and/or to rescind.