(1) If an undertaking has intentionally or negligently violated a provision of this Part, Article 101 or Article 102 of the Treaty on the Functioning of the European Union or a decision of the competition authority and in this way gained an economic benefit, the competition authority may order the disgorgement of the economic benefit and require the undertaking to pay a corresponding amount of money.
(2) Subsection (1) does not apply if the economic benefit has been disgorged by
1. the payment of damages,
2. the imposition of a fine,
3. virtue of an order to confiscate the proceeds or
4. reimbursement.
To the extent that payments pursuant to sentence 1 are made by the undertaking after the disgorgement of benefits, the undertaking is to be reimbursed for the amount of such payments.
(3) If the disgorgement of benefits would result in undue hardship, the order is to be limited to a reasonable amount of money or not to be issued at all. It is also not to be issued if the economic benefit is insignificant.
(4) It is presumed that a violation of the provisions under Chapters 1, 2 or 5 of this Part, Articles 101 or 102 of the Treaty on the Functioning of the European Union or a decision issued by the competition authority pursuant to Section 19a or Chapter 6 of this Part has resulted in an economic benefit. The amount of the economic benefit may be estimated. Section 287 of the Code of Civil Procedure applies accordingly to the estimation of the benefit amount with the proviso that a preponderance of probability suffices. It is presumed that the economic benefit according to sentence 1 amounts to at least 1 per cent of the turnover achieved in Germany with the products or services related to the violation. The presumption under sentence 4 is to be based on the disgorgement period according to subsection (5) sentence 1. The presumption under sentence 1 in conjunction with sentence 4 cannot be countered by arguing that no economic benefit or merely a minor benefit has accrued. It can be rebutted only if the undertaking proves that neither the legal person or association of persons directly involved in the violation nor the undertaking made a profit in the corresponding amount in the disgorgement period. The determination of the undertaking's profit pursuant to sentence 7 is to be based on the profit achieved worldwide by all natural and legal persons as well as associations of persons operating as a single economic entity. The presumption according to sentence 1 in conjunction with sentence 4 does not apply if accruing a benefit is ruled out due to the special nature of the violation. The amount of money to be paid is to be specified in numbers and may not exceed 10 per cent of the total turnover generated by the undertaking or association of undertakings in the business year preceding the authority's decision.
(5) The disgorgement of benefits may be ordered only within a time limit of up to seven years from termination of the infringement, and only for a time period not exceeding five years (disgorgement period). Section 33h(6) applies accordingly. In the case of a final decision within the meaning of Section 33b sentence 1 or a final court judgement within the meaning of Section 33b sentence 2, the limitation period under sentence 1 begins to run anew.