Competition Register: BMWi heralds final phase

The time has finally come: data can be transmitted electronically to the Competition Register. On 29 October 2021, the German Federal Ministry of Economics and Technology [Bundeswirtschaftsministerium – BMWi] gave its go-ahead in the German Federal Gazette [Bundesanzeiger]. Authorities are already obliged to notify the German Federal Cartel Office [Bundeskartellamt - BKA] of sanction decisions electronically from 1 December 2021 onwards. From this date onwards, contracting authorities will also be able to retrieve information contained in the Competition Register. From 1 June 2022, the information has to be retrieved by contracting authorities in procurement procedures with a contract value of EUR 30,000 or more, and affected companies and official register offices can also request information.

The time schedule has been set

The Competition Register serves as a source of information for contracting authorities, sectoral contracting entities and franchisors for procurement procedures. It provides information on whether companies can or even must be excluded from procurement proceedings on grounds of economic crimes committed by them. Prosecuting authorities must notify their decisions in this respect to the German Federal Cartel Office. The information then stored in the Competition Register will have to be retrieved in certain procurement procedures in the future (for more information, see our Newsletters of April 2021 and August 2017).

The German Federal Cartel Office already announced the technical operational readiness of the digital register in March 2021 and has since been waiting for the BMWi to give its go-ahead. In the meantime, contracting authorities were and are called to register. The stipulation now announced by the BMWi was the last formal requirement for using the Competition Register.

The two following qualifying dates can be derived from the announcement:

1 December 2021:

• Notification obligation: prosecution authorities and authorities that are called upon to prosecute administrative offences are obliged to report relevant infringements to the German Federal Cartel Office (§ 2 (1) and (2) German Competition Register Act [Wettbewerbsregistergesetz – WRegG]).
• Information retrieval possibility: contracting authorities that are already registered can retrieve information from the Competition Register.

1 June 2022:

• Information retrieval obligation: contracting authorities in procurement procedures with a contract value of 30,000 euros or more are obliged to retrieve the information contained in the Competition Register.
• Companies’ right to information: companies and natural persons are entitled to request information on the contents of the Competition Register relating to them once a year. In cases of special interest, information may be requested more frequently.
• Eligibility of official register offices to file applications: official register offices that meet the requirements of Art. 64 of the Public Procurement Directive (Directive 2014/24/EU) may, with the consent of the company concerned, request information on the content of the Competition Register relating to said company. This simplifies the so-called prequalification of companies through official registers such as that of the DIHK. Through its listing in the register, a company can prove its suitability and the absence of grounds for its exclusion for points relevant in award procedures, irrespective of the contract.

Transition phase

After more than four years of preparation, the final step towards the introduction of the Competition Register has now been completed. The obligations to retrieve information with regard to the corruption registers of the German Federal States and the central business register will continue to apply until the contracting authorities become obliged to retrieve the information from the nationwide Competition Register as of June next year. In addition, for a further three years after this date, it will be possible to consult the central business register on a voluntary basis.

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