Update of the Guidance Notice on Settlements in Fine Proceedings
On 19 August 2026, the Bundeskartellamt (Federal Cartel Office) published a new version of its guidance notice on settlements in fine proceedings. According to the authority’s presentation, the announcement was made as a notice under the title “Guidance Notice ‘Settlements in Fine Proceedings’ Updated” and not as a formal press release.
The new version continues to concern exclusively fine proceedings of the Bundeskartellamt. Administrative proceedings are not covered by the guidance notice. According to the official brief description, the guidance notice is intended to provide information on the requirements, procedure and consequences of an amicable termination of proceedings in fine proceedings.
Continuing Scope of Application and Classification
Fine Proceedings as the Sole Point of Reference
As with the 2016 version, the new version also relates to cartel authority fine proceedings. The scope of application therefore remains distinct from administrative proceedings. For companies, this distinction is important because the types of proceedings serve different purposes and are subject to different legal frameworks.
The previous version officially bears the date 02.02.2016. It remains available on the page “Legal Bases for Cartel Enforcement” as the old version alongside the new version of 19.08.2026.
Guidance Notice as a Description of Administrative Practice
From a legal perspective, the guidance notice is to be classified as soft law. It therefore has no direct legal effect vis-à-vis the companies or individuals concerned. Nevertheless, it describes the administrative practice of the Bundeskartellamt and can therefore be of considerable practical importance for assessing the authority’s approach in fine proceedings.
The revision comes at a time when cartel procedural law is being further developed. On 19 June 2026, the Bundeskartellamt issued comments on the ministerial draft of the 12th amendment to the GWB (Gesetz gegen Wettbewerbsbeschränkungen, German Act against Restraints of Competition) and welcomed faster and more efficient proceedings.
Expanded Preliminary Remarks and No Entitlement to a Settlement
Clarification on the Voluntary Nature of the Authority’s Offer
The preliminary remarks have been expanded compared with the 2016 version. Instead of one paragraph, they now contain two paragraphs. What is newly emphasised in substance is that there is no entitlement to an amicable termination of proceedings.
According to the Bundeskartellamt’s presentation, such a termination of proceedings may be offered in order to accelerate and simplify complex and resource-intensive fine proceedings for infringements of competition law. This does not give rise to any obligation on the part of the authority to enable a settlement.
No Change in the Basic Character
The basic character of a settlement therefore remains focused on a procedural understanding aimed at efficiency. However, the Bundeskartellamt makes it clearer that the decision on whether to offer an amicable termination of proceedings lies with the authority.
For practice, this point is relevant not only linguistically. It distinguishes the possibility of a settlement from an enforceable legal entitlement and continues to place it within the authority’s procedural discretion.
Statutory Framework Following the 10th Amendment to the GWB
Reference to § 33g Abs. 3 Nr. 2 GWB
In its comments on the legal framework, the Bundeskartellamt now refers to the express statutory provision on amicable terminations of proceedings introduced by the 10th amendment to the GWB in § 33g Abs. 3 Nr. 2 GWB. Naturally, this reference was not yet incorporated in the old version of the guidance notice in the same way.
This addresses the role of settlement declarations in cartel fine proceedings, which has since been expressly taken into account by statute. The new version thus places the authority’s practice more firmly within the current statutory framework.
Omission of a Previous Note
It is noteworthy that a sentence from the 2016 version is no longer included. That version still expressly stated that “the central rule-of-law requirements, as specified by the Bundesverfassungsgericht (Federal Constitutional Court),” had to be observed (translation).
The omission of this sentence does not, without more, imply a departure from rule-of-law requirements. It should be noted, however, that the express wording was not carried over into the new version.
Access to the File Before Concluding a Settlement
Change Compared with the Previous Version
A further change concerns access to the file. In the 2016 version, full access to the file was still excluded as long as investigations against other parties concerned were ongoing and the purpose of the investigation would thereby have been jeopardised.
The new version now expressly states that, before a settlement is concluded, the defence will be granted access to the file upon application. This more clearly incorporates access to the file before the amicable termination of proceedings into the procedural sequence.
Reference Point of the Old Rule
The 2016 version already provided that settlement discussions may be initiated by either side at any time. It also provided that the Bundeskartellamt would generally grant at least partial access to the file.
Against this background, the new wording does not constitute an isolated individual rule. Rather, it must be considered in light of the previous understanding of access to the file in settlement constellations.
Waiver of Contesting the Allegations Instead of an Admission
Core Change in the New Version
The central substantive change lies in the description of the declaration required for an amicable termination of proceedings. Whereas the 2016 version still referred to an “admission,” the new version only requires a waiver of the right to contest involvement in the allegations made.
This linguistic adjustment is the essential change after ten years without revision of the settlement guidance. Whether this will result in a noticeable change in the authority’s actual practice remains to be seen.
No New Rule on Waiver of Remedies
By contrast, it is not new that a waiver of legal remedies is not part of the settlement declaration. The 2016 version already expressly excluded such a waiver of legal remedies.
The 2026 new version should therefore not be understood in every respect as a substantive break with the earlier version. Some elements are continued, while others are clarified or reformulated linguistically.
Settlement Discount and Its Significance in the Authority’s Practice
Maximum Discount in Horizontal Cartel Agreements
According to the official presentation by the Bundeskartellamt, the settlement discount for horizontal cartel agreements remains a maximum of ten percent of the fine. Based on the available information, the new version of the guidance notice does not change this framework.
The discount therefore remains a possible component of an amicable termination of proceedings. Its specific significance, however, depends on the respective proceedings and the circumstances relevant in those proceedings.
Practical Relevance in Fine Proceedings
Settlements are of considerable importance in the Bundeskartellamt’s official practice. In road repair proceedings announced by the Bundeskartellamt on 6 August 2026, according to the authority’s publication, all proceedings were concluded by way of amicable termination.
Where official publications name companies, this is based on the respective communication by the Bundeskartellamt. This does not entail any further assessment of individual proceedings.
Overview of the Key Points of the New Version
The new version remains four pages in external length. In fact, however, it contains more text than the earlier version. The additional explanations concern in particular the structure, the legal framework and individual procedural issues.
Key points of the revision are:
- no extension to administrative proceedings of the Bundeskartellamt,
- clearer emphasis that there is no entitlement to a settlement,
- express reference to § 33g Abs. 3 Nr. 2 GWB,
- omission of the earlier sentence on central rule-of-law requirements,
- amended wording on access to the file before conclusion of a settlement,
- replacement of the “admission” by the waiver of contesting involvement,
- no new development regarding the exclusion of a waiver of legal remedies as part of the settlement declaration.
More Clarity or Mainly a New Version?
Whether the additional notes will actually lead to greater clarity in amicable terminations of proceedings will only become apparent in further application. In any event, the new version contains more explanations than the previous version and at the same time adopts key principles of previous settlement practice.
It remains particularly important to observe what significance the changed wording from an admission to a waiver of contesting the allegations will have in practical handling. The change is clearly recognisable, but its practical scope cannot yet be conclusively assessed.
Competition Law Assessment by MTR Legal
Cartel fine proceedings and amicable terminations of proceedings regularly affect significant economic, procedural and reputational interests. The new version of the Bundeskartellamt’s guidance notice makes clear that the precise classification of the respective procedural situation continues to depend on the specific circumstances.
MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on matters of commercial law, including in the area of competition law. If you have legal questions concerning cartel proceedings, settlement structures and the authority’s procedural practice, you can find further information under Legal advice in competition law.
