Same discount, faster process: The German FCO’s updated rules for cartel settlements

On 19 August 2026, the German Federal Cartel Office (FCO) replaced its ten-year-old guidance on settling cartel fine proceedings with new guidance superseding the February 2016 version.

The headline number has not moved. A settlement still buys a maximum 10% discount in horizontal cartel cases. There is a stronger focus, though, on speeding up and simplifying the procedure. The guidance now streamlines the process into what can be a single meeting or a paperwork-only exchange. The requirements attached to the settlement declaration itself have been lowered, and the FCO steers the course and timing of proceedings more tightly. 

While there remain quite a few important differences between the FCO’s revised settlement procedure and the European Commission's (Commission) Settlement Notice, we see some strategic convergence: the Commission has repeatedly noted recently that it has settled fewer cases in recent years as addressees have often brought appeals against the resulting fining decision, frustrating in the Commission’s view the very purpose of the settlement procedure. The FCO appears to have taken up the same concern since its new guidance repeatedly emphasises the acceleration of proceedings as justification for the settlement procedure in the first place. This may well be read as insinuating that the FCO will terminate (or not even initiate) settlement talks where they are unlikely to create the efficiencies and speed the authority is looking for. 

So, it is no surprise that the FCO’s new guidance links the practice to the FCO's general discretion under § 81d(4) of the Act against Restraints of Competition (GWB) and reaffirms, just as the 2016 version did, that the detailed requirements for a settlement remain unregulated in either EU or national law. Unlike leniency, settlements thus remain soft law, which under the FCO’s new guidance seems to follow an increasingly stringent take-it-or-leave-it approach. 

What are the main changes since 2016

First, the guidance offers a more precise legal characterisation of what a settling party must accept. The 2016 guidance required a confession-type submission (geständige Einlassung), under which the party had to acknowledge not only a description of the offence but also the circumstances relevant to the determination of the fine. 

By contrast, the 2026 guidance requires the party to declare a waiver of contestation (Verzicht auf das Bestreiten), meaning a waiver of the right to contest its participation in, and its responsibility for, the infringement as set out by the FCO. Here, the FCO expressly tracks the wording of the definition of a settlement in the ECN+ Directive and GWB. Both the 2026 and 2016 versions, nonetheless continue to require acceptance of the fine up to the indicated amount. 

Accordingly, the FCO emphasises that settlement proceedings are not intended to collect evidence but to speed up the process, since the key evidence has already been gathered. Thus, it expressly classifies the settlement declaration as a procedural declaration rather than a substantive admission. 

Second, the procedure has become leaner and more discretionary. The 2016 guidance described a linear process, with no fixed time limits, consisting of an explanation of the facts, partial file access, a hearing, and then a written proposal with a deadline. 

The 2026 guidance still sets no fixed timeline. However, it caps live contact to typically a single meeting or a written offer. It even allows a draft fine notice issued in the course of a hearing on the basis of which a settlement declaration can be made without any settlement discussion at all. In practice, though, this compressed format may prove difficult where the FCO is pursuing several addressees in the same case: an acceleration effect will typically only materialise if all, or at least a majority, of the parties are prepared to settle. It is doubtful whether that alignment can realistically be reached with everyone in a single round. One potential upside for the parties, though, is that the FCO may respond to this constraint by potentially approaching settlement on the basis of a more minimal version of the fine notice.

Third, access to file has become less qualified. Under the 2016 guidance, full access to file was expressly excluded where investigations against other affected parties were still ongoing and full access would have jeopardised the purpose of those investigations. Thus, the defence typically received only partial access. The 2026 guidance grants access to file to the defence on request under § 147(1) of the Code of Criminal Procedure (StPO) and § 46(1) of the Administrative Offences Act (OWiG), without repeating that earlier reservation for ongoing parallel investigations.

Fourth, a new all-parties factor has emerged. The 2016 guidance expressly disclaimed any need for consent from all affected parties. The 2026 guidance has the FCO consider whether a comprehensive settlement with everyone involved is achievable, signalling a discretionary preference for comprehensive resolutions.

Fifth, there remains no entitlement to settlement talks but their initiation is now framed more quietly around the FCO's own discretion. The 2016 guidance expressly confirmed that talks could be initiated at any time by either side. The 2026 guidance drops this bilateral language and frames the whole process around the FCO's discretion, disclaiming any entitlement to talks. This is not an express bar on a party proposing settlement, but it is a noticeably more authority-centric tone aligning the FCO‘s approach with how the European Commission has acted under their Settlement Notice anyway. The FCO also emphasises that entering into settlement talks creates no entitlement to their continuation. It will only continue such talks for as long as, in its assessment, they appear capable of achieving a simplification and acceleration of the proceedings.

What stays the same

There is still no entitlement to a settlement, the 10% cap for a discount remains the same, just as the calculation of that discount on top of a fine already reduced for cooperation; companies still do not need to waive making use of legal remedies, and settlement decisions will still be issued without a detailed evidentiary and legal assessment.

What is different at EU level 

Under the Commission's Settlement Notice, parties may request settlement, admit their participation in the infringement, and accept a maximum fine in exchange for a 10% reduction, applied on top of any leniency reward. There is also no entitlement to a settlement. The Commission decides case by case whether settlement is appropriate and follows, in contrast to the FCO, a defined, deadline-driven procedure with a Hearing Officer. To settle, a party must submit a formal settlement submission acknowledging liability, accepting a maximum fine, confirming it has enough information on the objections, and confirming it will not seek further file access or an oral hearing unless the Commission departs from the agreed submissions. Once the statement of objections reflects the settlement submission, no further hearing or file access is available. In summary, the Commission's process follows fixed deadlines and procedure, while the FCO's is speed-oriented and more informal.

What this means in practice 

• No individual entitlement to a settlement discount, or even to be invited into talks, exists under the new guidance.
• The accelerated route can now be a single meeting or a paper-only exchange based on a draft fine notice. This makes the initial step into settlement easier, but it leaves companies with a weaker, if any, 'negotiating' position once talks are underway, since positions on the facts, the fine range and any cooperation contribution may now need to be settled internally, and communicated to the FCO, earlier than under the 2016 practice. There may simply be no second round.
• Because the settlement declaration no longer requires a confession or the party's own account of the underlying facts, but only a waiver of contestation, the litigation risk arising directly from the declaration itself may be reduced. Whether this also makes it harder for follow-on damages claimants to rely on the settlement declaration remains to be seen, and should be monitored as FCO and court practice develops.
• The new all-parties factor suggests the FCO may favour comprehensive settlements. As stated above, this may prove difficult in the compressed format. A potential upside for the parties: the FCO may – and should – compensate by working from a more minimal version of the fine notice.
• Because the procedural detail remains soft law, there is no bespoke statutory remedy and the available route remains an objection (Einspruch). This reopens the case and puts the settlement discount itself at risk. However, this is unlikely to change much in practice. The FCO is unlikely to investigate further in the interim, so the real consequence is that any resulting fine notice would simply cover the full original allegations rather than the narrower settlement basis. The hearing itself would likely proceed no differently, and that is already how objections work today.