More trans­paren­cy in com­pe­ti­tion! 3 Infor­ma­tion you should have about the new com­pe­ti­tion reg­is­ter — What con­tent does the com­pe­ti­tion reg­is­ter offer? (2)*

In today’s sec­ond part of our three-part series, we will inform you about the func­tions and con­tents of the Com­pe­ti­tion Reg­is­ter.

In the future, pub­lic pros­e­cu­tors and oth­er law enforce­ment agen­cies will be oblig­ed to reg­is­ter vio­la­tions of applic­a­ble law in the com­pe­ti­tion reg­is­ter. The oblig­a­tion to do so exists from one month after the reg­is­ter goes into oper­a­tion.

Pur­suant to Sec­tion 6 (1) WRegG, pub­lic con­tract­ing author­i­ties will in future be oblig­ed to obtain infor­ma­tion from the com­pe­ti­tion reg­is­ter after the open­ing of bids and before award­ing the con­tract whether the bid­der who is to receive the con­tract has already attract­ed atten­tion due to unlaw­ful con­duct in the past and is sub­ject to a ban on award­ing con­tracts. If the con­tract vol­ume is below this thresh­old, a query is not required, but is pos­si­ble. How­ev­er, the award­ing author­i­ty is only enti­tled to query if there is a con­crete inten­tion to award the con­tract.

The query is made dig­i­tal­ly via a por­tal pro­vid­ed by the Fed­er­al Car­tel Office. Reg­is­tra­tion is required for this (Sec­tion 2 (1) WReg­VO). This por­tal is to be the inter­face between the spe­cial elec­tron­ic pub­lic author­i­ty mail­box (beBPo), the spe­cial elec­tron­ic lawyer mail­box (beA) and DE-Mail.

A range of unlaw­ful con­duct and crim­i­nal offens­es are reg­is­tra­ble.

Par­tic­u­lar atten­tion should be paid to offens­es under crim­i­nal tax law, which can cause last­ing dam­age to pub­lic bud­gets. Like­wise, bid­ders who have attract­ed atten­tion due to mon­ey laun­der­ing, financ­ing of ter­ror­ism and the for­ma­tion of crim­i­nal orga­ni­za­tions or who are asso­ci­at­ed with orga­nized crime should be entered in the com­pe­ti­tion reg­is­ter.

Com­pa­nies that have attract­ed atten­tion by dis­re­gard­ing social require­ments, such as the min­i­mum wage law, will also have to expect an entry in the future.

In order to exclude false or incor­rect entries, which could cause con­sid­er­able dis­ad­van­tages for a com­pa­ny, only legal­ly bind­ing judg­ments and deci­sions impos­ing fines are eli­gi­ble for reg­is­tra­tion.

If you are an entrepreneur/company unlaw­ful­ly affect­ed by an entry in the com­pe­ti­tion reg­is­ter, feel free to call us.

Before an entry is made in the com­pe­ti­tion reg­is­ter, each com­pa­ny is giv­en the oppor­tu­ni­ty to com­ment on the threat­ened entry in a hear­ing and, if nec­es­sary, to state and assert objec­tions.

In the event of a hear­ing, be rep­re­sent­ed by attor­neys spe­cial­iz­ing in pub­lic pro­cure­ment law.

Fur­ther­more, com­pa­nies that may be exclud­ed from pub­lic com­pe­ti­tion as a result of an entry in the com­pe­ti­tion reg­is­ter are giv­en the oppor­tu­ni­ty to file an appli­ca­tion for ear­ly dele­tion of the entry in the reg­is­ter. For this pur­pose, the com­pa­ny must be able to prove by means of suit­able com­pli­ance mea­sures, for exam­ple con­se­quences at per­son­nel lev­el in con­nec­tion with the estab­lish­ment of an effec­tive Com­pli­ance Man­age­ment Sys­tem (CMS), that a so-called self-clean­ing pur­suant to Sec­tion 125 GWB has tak­en place.

The com­pe­ti­tion reg­is­ter pro­vides com­pa­nies with infor­ma­tion regard­ing self-clean­ing mea­sures.

If the Fed­er­al Car­tel Office con­sid­ers the self-clean­ing mea­sures to be suf­fi­cient and effec­tive in the future, an appli­ca­tion for removal from the com­pe­ti­tion reg­is­ter can be grant­ed. Pur­suant to Sec­tion 11 WRegG, the com­pa­ny con­cerned can lodge an appeal if the appli­ca­tion is not grant­ed. Pub­lic con­tract­ing author­i­ties, on the oth­er hand, have no right of appeal if they do not agree with the dele­tion of a company’s block­ing order by the Fed­er­al Car­tel Office.

If such a request is not grant­ed, an entry in the reg­is­ter will be delet­ed after three years in the case of option­al grounds for exclu­sion and after five years in the case of manda­to­ry grounds for exclu­sion (Sec­tion 7 WRegG).

If you are a contractor/company plan­ning to self-clean to end a pro­cure­ment hold, feel free to give us a call.

*This legal tip is not a sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, nor is it spe­cif­ic to your case, and it also rep­re­sents a snap­shot in time, as legal prin­ci­ples and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves enter­tain­ment and ini­tial ori­en­ta­tion pur­pos­es and is intend­ed to moti­vate you to clar­i­fy legal issues at an ear­ly stage, but not to dis­cour­age you from doing so.

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