Kerstin GoeckDie bußgeldrechtliche Verantwortlichkeit der Bundesrepublik Deutschland für einen Verstoß gegen das Kartellverbot nach dem europäischen Kartellrecht

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According to the wording, the European antitrust provisions (Art. 101 TFEU as well as Art. 23 of Regulation (EC) No. 1/2003) exclusively address companies and associations of companies. Such entities can violate the ban on cartels and, therefore, be imposed by a fine of the European Commission. It is undisputed that not only private companies but also states are entrepreneurial active. But it is unclear to what extent the Federal Republic of Germany, as a member state of the European Union, might be liable for a cartel infringement by its entrepreneurial units, in particular whether the European Commission is entitled to impose a fine on a state. In the author’s view, there are two main approaches that may justify such liability: On the one hand, the Federal Republic of Germany could be regarded as an undertaking within the meaning of Art. 23 Regulation (EC) No. 1/2003 or, on the other hand, the model of economic unity could be used to attribute a cartel infringement of a public undertaking to the Federal Republic of Germany. Kerstin Goeck explains these possibilities and examines which aspects can be cited against a liability of the Federal Republic of Germany under the law on fines.

So far, this topic has only been addressed in rare cases in the literature and answered with the justification that states cannot be sanctioned for a cartel infringement on the basis of Art. 299 (1) second half sentence TFEU. However, there is no detailed justification for this view. Kerstin Goeck questions this approach, in particular with regard to its sense and purpose and takes a special look at the antitrust fine decision.

Further, she presents a proposal which shows how states can be „effectively“ prosecuted for a violation of the cartel prohibition and how the existing legal deficits in the sanctioning of fines against states could be eliminated.

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