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  • Author: Knut Werner Lange x
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Since the BGH passed the two “Rheinausbau”-Decisions, price-fixing agreements within award procedures which run counter to antitrust law may from his 2nd penal senate's point of view complete the corpus delicti of fraud. By two decisions of the y ears 2000 and 2001, also the 1st penal senate came to this opinion, since he again confirmed and at the same time facilitated the sanction of antitrust agreements by penal law. This adjudication deserves attention in particular with respect to the determination of the financial loss. According to this adjudication the financial/ass of price-fixing agreements contrary to antitrust law does also contain the surcharges resulting from the agreement. From the orderer’s point of view the attainable price for the placed order would have been the attained price less the surcharges resulting from the agreements. Payments of bribes and adjustment payments to the companies participating at the trust or option money to the outside brokers are deemend by the BGH as almost compulsive signs of evidence for the fact that the price attainable without the price-fixing agreement would have been lower than the actual agreed price. According to this the judge may assume a financial/ass at least up to the amount of the bribes and the adjustment payments. The critical analysis of the decision shows that the BGH is led in particular concerning the determination of the financial/ass by assumptions which can not convince both legally and economically.