So it has begun. However, when will the new provisions of the 9th amendment of the GWB actually apply? Aside from a number of exceptions, the 9th amendment will come into force on the day following its promulgation. But, a number of not insignificant provisions will have retroactive effect. This sounds as if it could be exciting.
The legislature has determined a time of entry into force for the 9th amendment of the GWB pursuant to Article 82(2)(1) of the German Fundamental Law. According to that provision, certain provisions regarding cartel damages claims entered into force already as of 27 December 2016 (Article 8 S. 1 of the amendment). The other provisions entered into force on the day following the promulgation, i.e. on 9 June 2017. Beyond that, there are a number of questions as to when certain provisions will apply and whether transitional rules will apply in some cases. The present contribution offers a short overview in this regard.
With the amendments to the cartel fine procedure introduced by the 9th amendment of the GWB the legislator intends a harmonization with EU-law and significantly extends the liability for cartel fines.
With the 9th amendment of the GWB, the legislator again attends to the closing of the so called “sausage gap”. This sanctioning gap in the German competition law derives its name from the sausage manufacturer Tönnies who was able to evade a three-digit million fine imposed by the Federal Cartel Office (FCO) by a clever corporate restructuring of his sausage empire. The essential assets of the legal entities responsible under antitrust law were transferred to other group companies and the legal entities ceased to exist.
The Middle Ages are regarded as the golden age of the kin liability (Sippenhaft) in Germany. According to the principle of kin liability, family members had to stand up for the actions of their relatives, regardless of whether they were involved or not. Thus, kin liability was a form of collective liability. A family member was liable even if it had done nothing wrong. This principle was so far unknown to the German law of regulatory offences and law of torts. In these areas of law it was undoubtedly the principle of separation of legal entities (Trennungsprinzip) that ruled. Pursuant to such principle, a legal entity is only liable for such antitrust violations that have been committed by its organs or employees in an attributable manner. Not for more. The 9th GWB-amendment now applies the ax to this basic principle. Is there a relapse into dark medieval times? This blog post is devoted to the question what the new German law has to say on the issue of corporate collective liability in the field of competition law.