Wettbewerbsregister und wettbewerbliche Vergaben

Abstract

The Competition Register an Competitive Procurement

The Competition Register Act (Wettbewerbsregistergesetz – WRegG) entered into force on 29 July 2017. The Act forms the legal basis for a central, nationwide competition register to protect competition for public contracts and concessions. The register will be established at the Federal Cartel Office (Bundeskartellamt) and maintained as an electronic database. With the provided comprehensive information, it will be easier for contracting authorities to determine whether a bidder can or is to be excluded from a public procurement procedure according to Sections 123 and 124 of the Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB). The register contains data of companies for which certain grounds for exclusion – such as the commission of certain criminal offences by specific people or cartel agreements – exist. In addition to companies, natural persons may also be affected if their conduct can be attributed to a company. Contracting authorities are obliged to query whether entries have been made in the competition register for certain bidders when awarding contracts with a contract value of € 30,000 or more. However, the mere entry of a company in the register does not result in a mandatory exclusion from an award procedure. Rather, contracting authorities must take their own decisions in accordance with public procurement law.

The actual introduction of the competition register depends on the enactment of an ordinance, which sets out the technical and organisational requirements as well as the reporting and consultation procedure in more detail. The register should be operational and available to clients by 2020 at the latest. Its creation will lead to numerous new legal questions and problems.

For example, the register is not open to the public, but only to public contracting authorities in a specific award procedure. Nevertheless, in view of the large number of potential awarding authorities – more than 30,000 public contracting authorities in the upper-threshold area of the WRegG – an entry can cause considerable damage to a company's reputation.

In addition, contrary to other offences, no legal force is required for registrations of antitrust fine decisions. This violates the principle of proportionality. The registration of such decisions is made even though appeal proceedings are pending. This leads to the danger of an unfair double sanctioning of the company concerned with regard to antitrust fines on the one hand and exclusion from award procedures on the other. Regardless, the waiver of legal force exclusively in the case of antitrust fine decisions constitutes unjustified unequal treatment within the meaning of Article 3 of the German Basic Law.

Furthermore, the WRegG does not provide that natural persons whose conduct is attributed to a company shall be heard prior to the registration of this company. The existing rules therefore unreasonably shorten the possibilities of legal protection by not granting these persons the right to a fair hearing.

There are also many other legal issues and problems related to the competition register which are discussed in the article.