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?’

published sub nom. What If All Bid Riggers Went to Prison And Nobody Noticed? - Criminal Antitrust Law Enforcement in Germany, in CRIMINALISING CARTELS: CRITICAL STUDIES OF AN INTERDISCIPLINARY REGULATORY MOVEMENT, C. Beaton-Wells, A. Ezrachi, eds., Hart Publishing, 2011, 157-182

20 Pages Posted: 5 Apr 2010 Last revised: 25 Sep 2014

Florian Wagner-von Papp

University College London Faculty of Laws

Date Written: April 5, 2010

Abstract

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.

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’.

Keywords: Antitrust Law, Competition Law, Criminalization, Criminal Enforcement, Bid-rigging, Germany

JEL Classification: D44, D63, L40, L41, L95

Suggested Citation

Wagner-von Papp, Florian, 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?’ (April 5, 2010). published sub nom. What If All Bid Riggers Went to Prison And Nobody Noticed? - Criminal Antitrust Law Enforcement in Germany, in CRIMINALISING CARTELS: CRITICAL STUDIES OF AN INTERDISCIPLINARY REGULATORY MOVEMENT, C. Beaton-Wells, A. Ezrachi, eds., Hart Publishing, 2011, 157-182. Available at SSRN: https://ssrn.com/abstract=1584887

Florian Wagner-von Papp (Contact Author)

University College London Faculty of Laws ( email )

Bidborough House
38-50 Bidborough Street
London WC1H 9BT, WC1H 9BT
United Kingdom

HOME PAGE: http://iris.ucl.ac.uk/iris/browse/profile?upi=FWAGN21

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