Sanction options

The state antitrust authority can initiate fine proceedings in the event of violations of antitrust law. It has prosecutorial powers in such proceedings. Investigative measures primarily include searches of the business premises of the suspected companies ordered by a court and the examination of witnesses.

Fines may be imposed for offences with a criminal background, in particular price, quota and territorial agreements. In the context of tenders and direct awards after a competitive tender, the submission of a bid following a corresponding agreement constitutes a criminal offence (Section 298 StGB), in other cases an administrative offence. Managers and executive bodies are also offenders if they tolerate the offences committed by their employees; otherwise they are at least guilty of a breach of supervisory duties. The highest fines are imposed on legal entities because they also receive the economic benefits from the cartels. The fine can amount to up to 10 % of the annual turnover.

The state cartel authority is responsible for all cases of collusion that occur within Hesse, i.e. in particular with clients based in Hesse; it therefore does not matter where the suspected persons and Companies have their place of residence or registered office.

The state antitrust authority can also initiate administrative proceedings instead of fine proceedings in the event of violations of antitrust law. In such proceedings, it can also conduct all investigations and collect all evidence required. Evidence can be seized, documents can be inspected, examined and demanded. If, in the course of proceedings, the Companies offer to enter into commitments that dispel the concerns of the antitrust authority, these commitments can be declared binding by order.

As part of administrative proceedings, the state antitrust authority can oblige companies to put an end to infringements of German or European antitrust law. Structural measures to remedy an infringement can also be ordered if they are proportionate and necessary. Investigations of entire economic sectors are possible if there is a presumption that competition has been restricted or distorted. The antitrust authority is also authorised to order the restitution of the benefits gained from an infringement.

Antitrust law violations can also result in civil law sanctions. Companies and business and consumer associations that have been adversely affected can assert claims for removal and injunctive relief as well as applications for the absorption of benefits. In addition, anyone who has been harmed by an infringement of competition law can claim damages. The Federal Court of Justice extends the District of companies entitled to claim very broadly. For example, in the context of a supply chain (manufacturer-wholesaler-retailer), the retailer as an indirect customer can also claim damages from the manufacturer acting in breach of antitrust law.

The responsibilities of the state antitrust authorities and the Federal Cartel Office are regulated in the Act against Restraints of Competition (GWB). The Federal Cartel Office is exclusively responsible for the clearance of mergers. The following also applies:

If the effect of anti-competitive behaviour does not extend beyond the territory of Hesse, the state cartel authority is responsible.
If the effect extends beyond the territory of Hesse, the Federal Cartel Office is responsible.
In individual cases, the jurisdiction can be changed by mutual agreement between the State Cartel Authority and the Federal Cartel Office.

If the effect of restrictive behaviour is likely to affect trade between the Member States of the European Union, European antitrust law applies. The European Commission is generally responsible.