Section 42 – Non-Prosecution in case of antitrust offences

(1) If the competition authority conducts proceedings for the imposition of a fine on a legal person or corporation pursuant to Section 82 of the Act against Restraints of Competition on the basis of facts which give reason to believe that a corporation’s responsibility pursuant to Section 3 (1) is also established, it shall immediately inform the prosecuting authority responsible for the sanction proceedings whether it intends to prosecute the corporation pursuant to Section 47 (1) of the Act against Administrative Offences or to discontinue the proceedings. The competition authority responsible under Section 50 (1) of the Act Against Restraints of Competition shall also inform the prosecuting authority if the European Commission, in application of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in articles 81 and 82 of the Treaty (OJ EC 2003 No L 1 p. 1), intends to prosecute the legal person or corporation in proceedings for the imposition of a fine or to discontinue the proceedings.

(2) If the prosecuting authority conducts sanction proceedings on the basis of facts which give reason to believe that the elements of Section 81 (1), (2) no. 1 or (3) of the Act against Restraints of Competition are also well-founded, it shall request the competition authority competent under Section 48 or Section 50 (1) of the Act against Restraints of Competition[1] to be informed pursuant to Section 1 without delay prior to the commencement of the first formal investigative measure.

(3) If the competition authority responsible under Section 48 or Section 50 (1) of the Act Against Restraints of Competition[2] notifies that it is prosecuting the legal person or corporation in proceedings for the imposition of a fine under Section 82 of the Act Against Restraints of Competition under Section 47 (1) of the Act Against Administrative Offences or that it is discontinuing the proceedings, the prosecuting authority shall refrain from prosecuting the corporation. The same shall apply if the competition authority responsible under Section 50 (1) of the Act against Restraints of Competition[3] informs that the European Commission, in application of Regulation (EC) No. 1/2003 of the Council of 16 December 2002 on the implementation of the rules on competition laid down in articles 81 and 82 of the Treaty (OJ EC 2003 No. L 1 p. 1), intends to prosecute the legal person or corporation in proceedings for the imposition of a fine or to discontinue the proceedings.

(4) If, in the case referred to in (3), the prosecuting authority has already brought the public action, the court shall terminate the sanction proceedings.

 

[1] The amendment of paragraphs 48, 50 GWB provided for in article 1 No. 23 of the draft Tenth Act to amend the Act against Restraints of Competition for a focused, proactive and digital competition law 4.0 (GWB Digitization Act) will be taken into account in the further proceedings

[2] see previous footnote above

[3] see previous footnote above