The implementation of the ECN+ Directive ((EU) 2019/1) will result in a strengthening of German law, especially with regard to the investigative powers of antitrust authorities.
First, according to the Draft bill for the 10th amendment to the Act against Restraints of Competition, companies will be obliged to cooperate in dawn raids conducted by the antitrust authorities, and the antitrust authorities may impose fines if they fail to comply. Second, the antitrust authorities will be able to oblige individuals to provide information and to hand over documents. Both the individuals questioned as witnesses and individuals against whom the administrative offence proceedings are directed will only be able to refuse to provide information if they would incriminate themselves by doing so.
It is true that the addressee of a request for information should not be forced to confess to a criminal offence or an infringement of antitrust law. Under certain circumstances, however, he must nevertheless provide information with which he incriminates himself. This information cannot then be used in administrative or criminal proceedings against the individual who provided the information. However, the information may be used in proceedings against the company that employs the individual.
This provision corresponds to the Orkem case law of the European Court of Justice (Case 374/87). However, the previously higher level of protection in Germany is hereby lowered to the level under European law, thus limiting companies’ rights of defence. Companies operating in Germany will therefore have to revise their internal guidelines for conduct during dawn raids by the antitrust authorities.
Another innovation resulting from the ECN+ Directive concerns fines imposed on associations of undertakings. In future, fines may be imposed on associations of undertakings which are not only based on their own revenues (usually membership fees) but also on the revenues of those members whose activities are connected with the association’s breach of competition law.
Finally, the implementation of the ECN+ Directive regulates in detail the cooperation between the German antitrust authorities and the antitrust authorities of the other EU Member States. The German Federal Cartel Office’s ability to enforce fine decisions from other Member States in Germany is particularly noteworthy.
The ECN+ Directive will certainly be the next big milestone in the history of EU antitrust law enforcement. Companies should be aware that the investigative powers of antitrust authorities will increase significantly and national competition authorities will intensify their network activities even further.
For further questions please contact: Dr Kathrin Westermann