Bundeskartellamt publishes guidelines for early deletion from the competition register
In March 2021, the Bundeskartellamt started the operation of the competition register. Consultant and authorities who are subject to the request have been open to registration. Since June 2021, interested circles have also been called up to comment on two draft documents from the Federal Cartel Office as part of a public consultation: (i) for the draft of the "guidelines for early deletion of an entry from the competition register for self -cleaning" and (II) the "practical references to an application".
As an electronic database, the competitive register is intended to contribute to combating economic crime and antitrust violations. In this way, it should be possible to check with a single query throughout Germany whether companies involved in a tender must or can be excluded from the award procedure due to certain economic offenses.
It is therefore primarily decisive for companies what information is included in the register in accordance with the reasons in accordance with the law against the law against restrictions on competition (GWB) §§ 123, 124 and how long they are stored. Especially for companies that are mainly active for public clients, an entry can lead to the edge of existence. For this reason, in such cases, the application for early deletion from the registration from the competitive register according to Section 8 (1) WREGG and thus the possibility of self -cleaning according to § 125 GWB is the focus. The guidelines that are now in the consultation were expected accordingly.
What do the guidelines regulate for early deletion from the competition register for self -cleaning?
With the guidelines, the Federal Cartel Office determines the principles of how it will be used in its function as register authority the regulations for premature deletion of an entry from the competition register for self -cleaning. With regard to the application for deletion from the competition register, the restricted fundamental investigation principle should apply. According to this, the company must meet all prerequisites for self -cleaning according to § 125 GWB for early deletion and demonstrate and demonstrate to the register authority itself; A separate determination of the register authority is not required afterwards. As a result, the company bears the risk that the application for early deletion - possibly without asking - will be rejected in the event of inadequate application.
What are the prerequisites for early deletion of the registration from the competition register for self -cleaning?
As a prerequisite for early deletion, the application must be permitted and justified according to the guidelines. To do this, the company must make a legitimate interest in early deletion. According to the guidelines, the most concrete explanation is that the company takes part in the award procedure or intends to do so and to what extent it is economically dependent on public orders. The reason for the deletion is justified if the three cumulative requirements of self -cleaning have been demonstrated in accordance with Section 125 GWB for the purposes of the award procedure.
- The company must compensate for damage caused or commit itself to the future. Here - even according to the rather rudimentary explanations of the guidelines - the clarification of the damage actually incurred can be problematic, especially in the area of antitrust administrative offenses. In particular, there could be a large group of potentially damaged people.
- The company has to actively cooperate with the authorities.
- The company must take concrete compliance measures and personnel measures that are suitable for avoiding future comparable misconduct.
What are the requirements for the compliance measures?
The compliance measures taken must ensure the future avoidance of a comparable misconduct. In this context, according to the guidelines, the standards of effective compliance are of importance. In addition, the compliance measures on the specific circumstances of the company concerned and the specific circumstances of the misconduct based on the entry would have to be aligned.
What exactly is the standards of effective compliance?
In its "practical information for an application for early deletion from the competition register for self -cleaning", the Federal Cartel Office has outlined, which should be understood by the standards of effective compliance. In addition to a representation of basic aspects, the practical information contains an exemplary questionnaire, which results from what the Federal Cartel Office considers particularly relevant with regard to compliance measures.
The standards of effective compliance requested a risk analysis to determine which risks have caused the misconduct and which causes these risks. Based on these results, the company should make concrete adjustments to the organizational and supervisory structure. For example, adjustments in IT systems or the introduction of a four-eye principle are conceivable.
An essential part of effective compliance measures is also the unmistakable commitment of the company management to act in accordance with the leg. The seriousness of the efforts must be taken from the company management by concrete measures.
In addition, a careful selection, training and control of the company employees is required. This applies above all to those employees who have decision -making powers in identified risk areas. Furthermore, the Federal Cartel Office attaches great importance to an adequate use of internal and external references to any misconduct by the company. The establishment of a confidential information system for reporting violations could make a significant contribution to the uncoveration of violations.
In order to actively request right-wing behavior, incentives could be made to observe the compliance requirements. It is also important to consistently punish violations. The effectiveness of the compliance measures presupposes that the persons responsible for compliance are equipped with adequate resources and skills so that they can perceive their functions independently and enforcement. According to the guidelines, it must be clear who is responsible for the introduction and enforcement of compliance measures in the company.
Finally, rules contribute to the evaluation and adaptation of the compliance measures to their effectiveness. Because the required compliance measures could change over time.
What are the requirements for the personnel measures?
Even according to the guidelines, the personnel measures are closely related to compliance measures. They should also prevent the misconduct from repeating. If necessary, the handling of a company with the people involved in individual cases allows conclusions to be drawn about compliance. An individual case is also decisive with regard to the personnel measures. Sharp personnel measures should not be taken in every case. However, in the event of a waiver, it should be stated to what extent the waiver is appropriate from the company's point of view. In any case, the company must indicate which people were specifically involved in the misconduct. As a rule, the name of the persons concerned is necessary.
Effects of the guidelines of the Federal Cartel Office: a first assessment
The guidelines of the Federal Cartel Office for early deletion from the competition register for self-cleaning create more transparency with a view to the requirements for compliance measures. This is to be welcomed. However, the handling of individual aspects remains vague or is abstractly kept in the guidelines. For example, with regard to the investigation of the actually caused damage in the case group of antitrust offenses, which should cause considerable problems as part of self -cleaning. It remains to be hoped that the guidelines will be “re -sharpened” according to the first practical experience of the register authority. Ultimately, despite the first clues in the guidelines, the company remains a significant need for advice, as in individual cases which measure for successful self-cleaning must be implemented appropriately.
