Vertical price fixing uncovered using the investigative powers of the ECN + directive in the Pfanner case—a closer look at the fundamental rights dimension of the investigative powers [Germany].

The article focuses on the Pfanner case, in which the German Federal Competition Authority (Bundeskartellamt) imposed a fine of approximately EUR 800,000 on Pfanner Schutzbekleidung GmbH for vertical price fixing, applying the investigative powers granted by the ECN+ Directive. The ECN+ Directive, implemented in Germany through amendments to the Act against Restraints of Competition (ARC), equips National Competition Authorities with extensive powers to request information and conduct inspections in administrative offence proceedings, though these powers raise concerns regarding conflicts with fundamental rights such as the nemo tenetur principle (protection against self-incrimination). While natural persons enjoy some protection against self-incrimination under German law, undertakings face more limited safeguards, as they must provide information even if it may incriminate them, consistent with the narrow interpretation of the nemo tenetur principle under EU competition law. The article also highlights procedural issues, including the allowance of written statements as evidence without oral testimony, which may conflict with the principle of immediacy in judicial proceedings.