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German antitrust law at a glance
In Germany, the monitoring of competition is primarily the
responsibility of the Bundeskartellamt (Federal Cartel Office).
The main task of the Bundeskartellamt is to enforce the Act
against Restraints of Competition (GWB), which came into force
on 1 January 1958 and forms the basis for the
Bundeskartellamt’s activities. Among the member states of the
European Union, Germany’s competition law enforcement
regime is considered to be particularly strict. The GWB contains
a general prohibition of cartels as well as regulations on the
control of abusive practices by dominant undertakings; in
addition, it exercises preventive control over mergers and
contains provisions to legally protect bidders for public
contracts. In response to the recent amendments to the
substantive and procedural EU competition law, the GWB will
be amended in the near future to reflect the change in EU
competition law from an ex ante to an ex post system of
control. As a result, European Block Exemption Regulations will
become directly applicable in Germany in their current version.
Organisation of the Bundeskartellamt
As an independent higher federal authority, the
Bundeskartellamt reports to the Federal Ministry of Economics
and Labour. As part of the relocation of the federal government,
the Bundeskartellamt has moved from Berlin to Bonn. The
Bundeskartellamt is headed by a president (currently Dr Ulf
Böge) who represents it externally. Decisions on mergers, cartels
and abusive conduct are made by eleven decision divisions
(Beschlussabteilungen) whose areas of responsibility are
organised according to economic sectors. A collegiate body
composed of the chairman and two associate members
(Berichterstatter) of the relevant decision division decides by
majority vote independently of internal or external instructions
and particularly free of political influence. Decisions of the
Bundeskartellamt are subject to judicial review by the Düsseldorf
Higher Regional Court (Oberlandesgericht Düsseldorf) in the
first instance and by the Federal Supreme Court
(Bundesgerichtshof) in the second instance.
Competition law enforcement
The Bundeskartellamt proceeds against all restraints of
competition which have an effect in the Federal Republic of
Germany.
Among its specific tasks is the enforcement of the ban on
cartels and abusive practices. For that purpose, the
Bundeskartellamt has extensive investigatory powers which have
been exercised in a number of cases in the past. The
Bundeskartellamt may request information from enterprises,
inspect business documents and, after obtaining a relevant order
from a local court, search enterprises and seize evidence. In
addition, if an illegal cartel is detected, the Bundeskartellamt
GIBSON, DUNN & CRUTCHER LLP
Widenmayerstrasse 10
80538 Munich
Germany
Tel: +49 89 189 33-0
Fax: +49 89 189 33 333
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itself may impose high fines on the enterprises involved.
In recent years, the Bundeskartellamt has intensified its fight
against hard-core cartels by setting up a special unit for
combating cartels (Sonderkommission Kartellbekämpfung). This
task force assists the decision divisions in uncovering cartel
agreements by deploying specialised personnel and material
resources. Another new instrument in that respect is the leniency
programme (Bonusregelung), which gives the Bundeskartellamt
the option to exempt undertakings participating in a hard-core
cartel from a fine in exchange for assistance in disclosure and
cessation of a forbidden cartel agreement.
Merger control
Another principal task of the Bundeskartellamt is the preventive
control of mergers. Mergers having effect in Germany and
exceeding certain thresholds have to be pre-notified to the
Bundeskartellamt and must not be consummated before
clearance has been obtained. Despite the worldwide decline in
merger activity, the number of mergers notified to the
Bundeskartellamt in the last years has remained at a constantly
high average level (in 2002, 1584 mergers were notified). In
practice, most mergers are cleared within one month (or less); if
mergers are not cleared within this time, the Bundeskartellamt
has to inform the parties that it has initiated its main
examination proceedings, giving the Bundeskartellamt a total
period of four months to clear or prohibit the merger.
Cooperation
The Bundeskartellamt closely cooperates with other competition
authorities, most intensively with the EU Commission in
Brussels. The cooperation focuses on the Bundeskartellamt’s
participation in decisions on individual cases as well as on the
reform of European law. In addition, the European Procedural
Regulation No. 1/2003 creates a new network of competition
authorities within the Common Market and further improves
the possibilities for cooperation and information exchange.
Other competition bodies
The Bundeskartellamt is not the sole competition authority in
Germany. Next to it, there are the competition authorities of the
various Bundesländer (federal states) which have the exclusive
competence for cases where the restrictive effect of a cartel or
abusive practice is limited to a single Bundesland only—a rather
infrequent event for undertakings operating on a larger than
regional level, however. For the sectors of telecommunications
and post, the Bundeskartellamt cooperates with an independent
regulatory authority responsible for preventing abusive behavior
in these industry sectors (RegTP). Finally, in exceptional cases,
the Federal Ministry of Economics and Labor can overrule
prohibition decisions of the Bundeskartellamt, authorising cartels
and mergers on grounds of public interest (Ministererlaubnis).
Founded in 1890, Gibson, Dunn & Crutcher is a leading international law firm with
over 800 lawyers in 13 offices in Europe (Paris, London, Munich and Brussels)
and the United States (including Los Angeles, New York, Washington, DC and San
Francisco). The firm is consistently ranked among the world's top law firms in
industry surveys and major publications.
Gibson Dunn's European antitrust practice in the Munich, London and Brussels
offices provides clients with advice on all questions of EU and national antitrust
laws. In Munich, a multilingual team of German, US and dual qualified lawyers,
working closely with Gibson Dunn's other European and US offices, provides high
quality legal representation to clients such as international blue chip corporations,
investment banks, private equity and venture capital funds and hi-tech and
emerging technology companies.
The Munich office covers both German and European antitrust law. In addition to
its merger control practice, the office has a particular focus on antitrust litigation
and IP-related questions and cases.
Gibson Dunn's European competition lawyers have long-standing experience in
dealing with national and European competition authorities, as well as extensive
litigation and arbitration experience.
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The authority
How long is the head of agency’s term of office?
Restraints of Competition is applied only by the competition
authorities.
The term of office is indefinite (until retirement).
If so, how do these relate to your role?
When is he/she next due for reappointment?
See above.
Which posts within the organisation are political
appointments?
All of the appointments are of Beamte auf Lebenszeit, ie
indefinite appointments of civil servants. In that sense, there are
no ‘political’ appointments within the Bundeskartellamt.
A regulatory authority for the telecoms sector and the postal
sector is responsible for preventing abusive behaviour in these
sectors. The Bundeskartellamt liaises closely with the regulatory
authority. In matters of market definition and market position,
the Bundeskartellamt has a veto right. The legal framework in
the electricity, gas and railway sectors is currently under review.
Review process
Which body hears appeals against the agency’s
decisions?
Resources
First instance: Oberlandesgericht Düsseldorf (Düsseldorf Higher
Regional Court).
Second instance: Bundesgerichtshof (Federal Supreme Court).
What is the agency’s annual budget?
The annual budget for 2004 was €18 million.
How many staff are employed by the agency?
About 300 (total staff). About 150 case-handlers.
Is there any form of judicial review beyond that
mentioned above? If so, which body conducts this?
Political structure
No.
To whom does the head of the agency report?
The Bundeskartellamt is an independent Federal authority which
is responsible to the Federal Ministry of Economics and Labour.
The Bundeskartellamt is independent in its decision-making and
in this respect does not receive political orders. The
Bundeskartellamt reports biannually to the Parliament on its
activities.
Reform
Do any industry-specific regulators have
competition powers?
When did the last review of the law occur?
Yes, on the basis of sector-specific laws, but the Act Against
Are there any plans to reform the competition law?
Yes. A reform of the German Act Against Restraints of
Competition (ARC) was initiated at the beginning of 2003 with
the main purpose of harmonising the national competition law
with European Regulation 01/03.
The last amendment of the ARC was the sixth amendment,
which entered into force on 1 January 1999.
CONTACTS
Bundeskartellamt
Eberhard Temme
Carsten Becker
Kaiser-Friedrich-Strasse 16
D-53113 Bonn
Germany
Tel: +49 228 9499 0
Fax: +49 228 9499 400
E-mail: [email protected]
Tel: +49 288 9499 410
Fax: +49 228 9499 142
Tel: +49 228 9499 487
Fax: +49 228 9499 164
Frank Reh
Hans-Jürgen Ruppelt
Tel: +49 288 9499 538
Fax: +49 288 9499 166
Tel: +49 228 9499 526
Fax: +49 228 9499 166
Hartwig Wangemann
Franz Heistermann
Tel: +49 288 9499 445
Fax: +49 228 9499 149
Tel: +49 228 9499 413
Fax: +49 228 9499 142
Jürgen Kiecker
Markus Wagemann
Tel: +49 228 9499 436
Fax: +49 228 9499 154
Tel: +49 228 9499 596
Fax: +49 228 9499 167
Detlev Fehrmann
Dorothea Seifert
Tel: +49 228 9499 439
Fax: +49 228 9499 154
Tel: +49 228 9499 562
Fax: +49 228 9499 163
Klaus Paetow
Wolrad Burchardi
Tel: +49 228 9499 448
Fax: +49 228 9499 149
Tel: +49 228 9499 568
Fax: +49 228 9499 163
Julia Topel
Gabriele Herlemann
Tel: +49 288 9499 491
Fax: +49 228 9499 164
Tel: +49 228 9499 542
Fax: +49 228 9499 163
Ulf Böge
President
Tel: +49 228 9499 200
Fax: +49 228 9499 140
Peter Ulocher
Director general—policy department
Tel: +49 228 9499 210
Fax: +49 228 9499 143
WWW.G LOBAL C OMPETITION R EVIEW. COM
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