The high regional court of Düsseldorf (OLG Düsseldorf) increases fines in the “liquefied gas cartel”

In 2007 and 2009 the German Federal Cartel Office (FCO) imposed a fine of overall EUR 208 Mio on certain companies involved in the “liquefied gas cartel”. Some of the companies involved appealed the FCO’s decision. The appeal court (OLG Düsseldorf) decided to increase the overall fine to EUR 244 Mio. This is approx. 35% more as the original fine imposed by the FCO.

The high regional court justified its decision not with just calculating the excessive-profits resulting from the illegal activity, but with taking into account also the time and the gravity of the infringement as gas is a good of general interests. The affected customers are small enterprises and private clients. Therefore it increased the fines for the “gas-tanks” sector by around 85% in relation to the original fines calculated by the FCO in 2009.

Companies usually appeal decisions of the FCO with the goal of receiving a reduction of the fine. However, since the appellate courts in Germany have unlimited jurisdiction they can – as in the present case – decide to increase the fines.

Decision of the German Federal Supreme Court leads to new calculation of fines for cartels

Fines in antitrust violations may not exceed 10% of the companies’ general turnover (Section 81 (4) GWB). The usual practice of the European Commission is to use this 10%-limit as a “capping threshold”. Now the German Federal Supreme Court dealt with the legal question, whether according to German law this 10%-limit should be considered a “capping threshold” or the highest fine possible for calculating a fine. So far the German Federal Cartel Office considered it – just as the European Commission – a “capping threshold” and drafted their guidelines for calculating fines accordingly.

In the decision dated 10 April 2013, in which the constitutionality of a fine of EUR 380 Mio in the cement-cartel was confirmed, the Supreme Court decided to interpret the limit of cartel fines according to Section 81 (4) GWB. Accordingly, the 10%-limit has to be seen as a maximum value instead of– as interpreted by the European Commission – a capping threshold.

On the basis of this interpretation the 10%-limit is considered constitutional since it is in accordance with the principle of certainty as companies can estimate the level of fines in case of an antitrust infringement.

Consequently, the German Federal Cartel Office stated in a press release dated 19 April 2013 that due to the Federal Supreme Court’s new decision its guidelines on setting the level of fines from 2006 will no longer be used until further notice.