More trans­paren­cy in com­pe­ti­tion! 3 Infor­ma­tion you should know about the new com­pe­ti­tion reg­is­ter — What are the ben­e­fits of the com­pe­ti­tion reg­is­ter? (3)* (3)*

In the third part of our infor­ma­tion series on the Com­pe­ti­tion Reg­is­ter, we look at the ben­e­fits for pub­lic pur­chasers, con­trac­tors and leg­is­la­tors.

Advan­tages for the pub­lic Con­tract­ing Author­i­ty

Until the start of the com­pe­ti­tion reg­is­ter, it was only pos­si­ble for pub­lic con­tract­ing author­i­ties to obtain infor­ma­tion from state cor­rup­tion reg­is­ters and the cen­tral busi­ness reg­is­ter. The scope of infor­ma­tion in these reg­is­ters was very lim­it­ed, although the facts that can now be entered have con­sid­er­able rel­e­vance for pub­lic pro­cure­ment. Thus, there was very often a con­sid­er­able lack of infor­ma­tion on the part of pub­lic con­tract­ing author­i­ties and con­tract­ing agen­cies.

The com­pe­ti­tion reg­istry pro­vides a sim­pli­fied and more uni­form dig­i­tal method to quick­ly obtain infor­ma­tion and exclude any appli­cants from the pro­cure­ment process.

This enables time sav­ings and less admin­is­tra­tive work.

It also spec­i­fies the dig­i­tal com­mu­ni­ca­tion between the reg­istry author­i­ty and the clients.

Advan­tages for the Con­trac­tor

The com­pe­ti­tion reg­is­ter also grants advan­tages to bid­ders.

Thus, any com­pa­ny can request a self-dis­clo­sure. Due to the sen­si­tiv­i­ty of the infor­ma­tion, this must be sub­mit­ted in writ­ing with an offi­cial or pub­licly cer­ti­fied sig­na­ture or elec­tron­i­cal­ly with elec­tron­ic iden­ti­fi­ca­tion. What is new is that there is a wait­ing peri­od of one year for the infor­ma­tion to be pro­vid­ed again, Sec­tion 5 (2) sen­tence 2 WRegG. This requires pay­ment of a fee of €20, Sec­tion 8 WReg­VO.

Like­wise, the com­pe­ti­tion reg­is­ter offers com­pa­nies that are sub­ject to a ban on award­ing con­tracts or have an entry in the reg­is­ter a trans­par­ent source of infor­ma­tion on how com­pli­ance mea­sures and self-clean­ing with­in the mean­ing of Sec­tion 125 GWB are to be car­ried out. § Sec­tion 12 WReg­VO will in future reg­u­late the require­ments for the doc­u­ments to be sub­mit­ted for the eval­u­a­tion of self-clean­ing. This will give com­pa­nies a real chance of being able to par­tic­i­pate in com­pe­ti­tion again even before the legal dele­tion of an entry after 3 or 5 years. Active com­pli­ance mea­sures and suc­cess­ful self-clean­ing can put a company’s dam­aged rep­u­ta­tion back into per­spec­tive.

If you have any ques­tions about this and need assis­tance, please feel free to call us at any time.

Noti­fi­ca­tion of mea­sures tak­en for the pur­pose of self-clean­ing is to be made by means of a stan­dard form which will be made avail­able on the Bundeskartellamt’s web­site.

Also, if a com­pa­ny can show that a client has deemed self-clean­ing mea­sures to be suf­fi­cient, it must also be stat­ed if this was not the case with oth­er clients.

The reg­is­ter author­i­ty may set a dead­line with­in which the com­pa­ny con­cerned must sub­mit expert opin­ions and oth­er doc­u­ments prov­ing the imple­men­ta­tion of self-clean­ing mea­sures. The com­pa­ny is free to choose the expert. How­ev­er, it must be stat­ed here whether and to what extent the expert has worked for the com­pa­ny in the past two years in order to ensure his inde­pen­dence (Sec­tion 12 (2) WReg­VO).

It is pre­cise­ly here, how­ev­er, that rep­re­sen­ta­tives of indus­try asso­ci­a­tions have voiced crit­i­cism. The rea­son for the crit­i­cism is that it is not clear what the basis is for deter­min­ing whether the reg­is­ter author­i­ty may demand an expert opin­ion or oth­er doc­u­ments. From the point of view of the indus­try asso­ci­a­tions, there is fur­ther ambi­gu­i­ty as to whether the select­ed expert may mere­ly not have worked else­where for the com­pa­ny or may also not have been involved in the self-clean­ing process.

Anoth­er point of crit­i­cism from the indus­try is that com­mis­sion­ing an expert always involves open­ing up inter­nal infor­ma­tion to exter­nal par­ties.

If you need an expert assess­ment of the effec­tive­ness of your com­pli­ance and self-clean­ing mea­sures, feel free to con­tact us.

*This legal tip is no sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, it does not relate to your case, and it also rep­re­sents a snap­shot, as the legal basis and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves main­te­nance 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.