Definition and significance of competition-related criminal offences
Competition-related criminal offences are criminal acts committed in connection with competition between companies, aimed at unfairly influencing or distorting competition to the detriment of competitors, market participants, or consumers. They are specifically defined and sanctioned in criminal law and under the law of unfair competition, particularly in the Act Against Unfair Competition (UWG). Competition-related criminal offences fall within the area of white-collar criminal law and must be differentiated from administrative offences under competition law.
These offences serve to protect competitors, consumers, other market participants, and the public from unfair methods of influence in competitive activities.
Legal basis of competition-related criminal offences
Criminal law provisions
The key criminal law provisions are found in Sections 16-20 of the UWG (Act Against Unfair Competition). These are supplemented by offences in the German Criminal Code (StGB) as well as other statutes if competition is influenced by fraud (Section 263 StGB), breach of trade secrets (Sections 17, 18 UWG), bribery (Section 299 StGB) or infringements of intellectual property rights.
Sections 16-20 UWG
These sections explicitly regulate the most important competition-related criminal offences:
- Section 16 UWG – (Deceptive practices): Penalizes misleading advertising, including, in certain cases, deception regarding the origin, quality, or price of goods/services.
- Section 17 UWG – (Disclosure of business and trade secrets): Sanctions the unauthorized disclosure or use of another’s business and trade secrets (classic case of industrial espionage).
- Section 18 UWG – (Use of another’s templates): Punishes the unauthorized use of templates in business operations, for example in product imitation or business sabotage.
- Section 19 UWG – (Criminal liability of company owners and employees): Specifies that these offences apply to both business owners and employees.
- Section 20 UWG (Abolished as of 2015): Regulation repealed; former sanctions for the conduct and facilitation of anti-competitive acts have been modified.
Additional criminal law provisions
- Fraud (Section 263 StGB): If a financial loss is caused through deception in competition, this provision applies.
- Bribery and corruptibility in commercial transactions (Section 299 StGB): Improper influence on business partners can also constitute a competition-related criminal offence.
- Violations of industrial property rights (including Section 143 PatG, Section 51 MarkenG, Sections 106, 108 UrhG): Product piracy and trademark infringements often have the character of competition-related criminal offences.
Distinction from administrative offences
Not every anti-competitive act is simultaneously a criminal offence. Many violations of the UWG or cartel law are classified as administrative offences rather than as crimes. However, once the threshold for criminal liability is exceeded, these acts constitute competition-related criminal offences, which can be punished by imprisonment, fines, and further sanctions.
Typical forms of competition-related criminal offences
Misleading advertising and deception
The targeted deception of consumers or competitors through false statements about products, prices, methods of manufacture, or origin is sanctioned under Section 16 UWG. This includes, for example, misrepresentation of non-existent quality characteristics or the use of unfair testimonials.
Disclosure and spying on trade secrets
One of the central competition-related criminal offences is the disclosure of business secrets (Section 17 UWG). This includes the unauthorized acquisition and use of know-how, customer lists, formulas, or calculations, for example by (former) employees or business partners.
Bribery and corruption in business life
Offering, promising, granting, or soliciting advantages for preferential treatment in competition is punishable under Section 299 StGB. This concerns, for example, cases of corruption in tendering or awarding contracts.
Violations of industrial property rights
The unauthorized use of patents, trademarks, designs, or copyrighted works in competition may give rise to liability under both competition law and criminal law (product piracy, trademark counterfeiting).
Criminal consequences and sanctions
Imprisonment and fines
Competition-related criminal offences can be punished by fines or imprisonment of up to five years (in particularly serious cases, more). In the case of corporate offences, measures under the law governing administrative offences (e.g., Section 30 OWiG – Corporate Fines) may also be considered.
Ancillary penalties and professional consequences
Special ancillary consequences include professional bans, confiscation orders for unlawfully obtained profits, and publication of convictions. Depending on the type and seriousness of the offence, measures under trade law (e.g., business prohibition) may also be initiated.
Sentencing and concurrence of offences
Sentencing depends on the seriousness of the offence, the extent of the damage, the conduct of the perpetrator, and any prior offences. In many cases, there is either concurrence or accumulation with offences such as fraud, breach of trust, or copyright infringement.
Procedural particularities
Investigative authorities and law enforcement
Prosecution of competition-related criminal offences is generally the responsibility of public prosecutors and the investigative authorities designated under state law. For larger cases and those with international relevance, the Federal Criminal Police Office (BKA) or Europol may be involved.
Limitation periods
The statute of limitations for prosecution varies depending on the type of offence and ranges from three to ten years (Section 78 StGB). For covert acts or ongoing violations, the period may be extended.
Relationship to civil claims and competition associations
Criminal prosecution of competition-related offences is independent of civil claims, such as for injunctive relief or damages pursuant to Sections 8-10 UWG. Competition associations and competitors may also assert claims and file criminal complaints.
Practical relevance and significance in the business world
Competition-related criminal offences are of significant importance for fair competition and the integrity of the market. They can cause serious financial losses and reputational damage to companies and frequently lead to extensive investigations and legal proceedings, both nationally and internationally. Globalized markets and increasing digitalization further raise the risk of competition crimes.
Literature and further information
- Act Against Unfair Competition (UWG)
- Criminal Code (StGB)
- Case law collections of the Federal Court of Justice (BGH) on competition-related criminal offences
- Commentaries and professional literature on the UWG and white-collar criminal law
This article provides a comprehensive overview of competition-related criminal offences in Germany and is suitable for inclusion in a legal encyclopedia.
Frequently Asked Questions
Who is entitled to file a criminal complaint for competition-related criminal offences?
Under German law, anyone can in principle file a criminal complaint for competition-related criminal offences. This means both immediate parties affected – for example, competitors whose interests have been violated by unfair business practices or misleading advertising – as well as unaffected third parties, such as consumers or competition associations, may report an offence to the police or public prosecutor. A criminal complaint will initiate an investigation if there is an initial suspicion. The public prosecutor is obliged to investigate ex officio if there are sufficient indications of a criminal offence. In particular, Section 16 UWG in conjunction with Section 298 ff. StGB regulates certain criminal offences under competition law, with public interest in prosecution playing an important role. Some offences require a criminal complaint from the injured party for prosecution, others only require a report by third parties. It is advisable to carefully collect and attach relevant evidence to the statement of facts so that the authorities can carry out a thorough review.
What penalties can be expected upon conviction for a competition-related criminal offence?
The criminal consequences of a competition-related offence depend on the relevant provision and the seriousness of the act. Under Section 16 UWG (Act Against Unfair Competition) in conjunction with relevant provisions of the Criminal Code (StGB), offenders may face prison sentences of up to two years or fines; in particularly serious cases, imprisonment can be extended, for example in competition-related corruption offences such as bribery and corruptibility in business transactions (Sections 299 ff. StGB), where imprisonment of up to three years (in some cases up to five years for serious cases) is possible. Occupational and trade-law related consequences such as the revocation of licenses or entries in the central trade register may also arise. The amount and type of penalty is determined by the seriousness of the offence, the degree of guilt, and any previous convictions.
Do competition-related criminal offences also apply to legal entities?
Yes, German law provides that legal entities, such as companies or associations, can also be held liable for competition-related criminal offences committed by their legal representatives or management bodies. While criminal sanctions are primarily imposed on natural persons, the Administrative Offences Act (OWiG), especially Section 30 OWiG, allows for the imposition of fines on companies when, for example, directors or representatives commit fraudulent, cartel-related, or other competition-infringing acts in the course of their duties. In serious cases, confiscation of assets obtained through the offence may also be considered (Section 73 StGB). Companies therefore face significant liability risk, making a well-conceived compliance management system essential.
Can an offence under competition law also have civil law consequences?
In addition to criminal prosecution, competition-related criminal offences regularly have civil law consequences. Competitors, consumer associations or other affected parties can assert claims for injunctive relief, damages, and disgorgement of profits. The basis for this is found particularly in Sections 8-10 UWG, which regulate civil claims, as well as Section 826 BGB (intentional immoral harm) as a general basis for claims. Civil claims for damages cover full compensation for all losses caused by the competition-related offence; in competition proceedings, a preliminary injunction can also be sought to immediately stop unfair conduct. Frequently, civil and criminal proceedings run in parallel and independently of each other.
Are competition-related criminal offences subject to a statute of limitations?
Yes, like all criminal offences, competition-related criminal offences are subject to a statutory limitation period. The specific limitation period depends on the applicable offence. Under Section 78 (3) StGB, the limitation period for most competition-related criminal offences, such as those under Section 16 UWG, is three years. In more serious cases, for example corruption in commercial transactions (Sections 299 ff. StGB), the periods can be five years. The limitation period begins when the offence is completed but may be interrupted by various actions (e.g., filing of public charges, certain investigative measures) (Section 78c StGB). Once the limitation period has expired, criminal prosecution is no longer possible, even if the offence can be proven.
What role does intent play in competition-related criminal offences?
For criminal liability for a competition-related criminal offence, intent is generally required, meaning the perpetrator must knowingly and willingly fulfill the elements of the offence. This distinguishes criminal law from the civil law level of the UWG, where even negligent actions can give rise to liability. Only if unfair competition acts are committed intentionally can criminal liability under Section 16 UWG or comparable criminal provisions arise. Exceptions include administrative offences under the UWG, which can also be committed negligently. In criminal proceedings, intent must be proven beyond a reasonable doubt, whereby conditional intent is sufficient for the perpetrator.
Is criminal defence advisable in cases of competition-related offences, and how is it conducted?
Defending against an accusation of a competition-related criminal offence is essential—especially in complex cases—and should always be undertaken by a lawyer experienced in both competition and criminal law. The defence strategy includes careful analysis of the allegation, assessment of the evidence, clarification of the subjective element (intent), and verification as to whether all elements of the offence—in particular, the commercial act in competition—are actually met. Problems such as inadequate evidence or insufficient demonstration of the competition context are common. In addition, procedural errors (e.g., unlawful searches) or formal errors in the criminal complaint can result in the proceedings being discontinued. In the course of investigations, the accused also enjoys full right to remain silent. Professional defence can have a significant impact on the outcome of proceedings.
