Hallelujah – the Federal Cartel Office (FCO) is reconsidering its position in relation to accepting a Compliance Defence. A great step forward in a long-lasting journey. From the outset, 2017 started with the FCO inheriting the role of supervisor for the newly installed German-wide competition registry. A company can avoid being listed as a “black sheep” if they can prove that they have undertaken all the relevant steps to be compliant. Therefore, the FCO needs to set standards as to what constitutes a “state of the art” compliance programme. In its “Lego” case the FCO had already accepted a compliance defence. This is in line with the most recent German Supreme Court’s ruling that a compliance programme constitutes a relevant factor when setting the fines. Moreover, this reflects the international mindset in most countries, for example the US, UK, France, Spain and Austria. Most importantly, it encourages many people and companies in their continuous day-to-day compliance efforts.
Prof. Dr. Daniela Seeliger heads the German competition law practice of Linklaters in Düsseldorf and teaches compliance and competition law at the Martin-Luther-University in Halle.