Germany: cartels, the dynamics of settlements and the (risky) court battle


In summary

The German Federal Cartel Office (FCO) continues to be an active, sophisticated and efficient enforcement authority. Most cartel cases in Germany are settled rather than appealed to the courts as both the FCO and undertakings aim to avoid lengthy and burdensome oral hearings. Undertakings may also rightly fear that their fine could be substantially increased by the Appeals Court. After a decrease in fines from 2019–2021 (partly caused by the covid-19 pandemic), cartel enforcement is picking up speed again. The FCO has resumed dawn raids, reinitiated cartel proceedings and commenced operation of the ‘competition register’, which will play a crucial role in public tenders.


Discussion points

  • Trends in cartel enforcement in respect of the FCO, leniency and settlements
  • Appeals Court proceedings and impact on undertakings’ willingness to settle or appeal
  • Impact of pending changes to procedural law in antitrust cases
  • Implementation of the ‘competition register’ at the FCO

Referenced in this article

  • Confectionery cartel proceedings
  • Rossmann case
  • Beer cartel proceedings
  • Sausage gap
  • 10th amendment to the Act against Restraints of Competition
  • Sehlbach case

The German Federal Cartel Office (FCO) is a very active, efficient and sophisticated enforcement authority. It has proactively picked up various matters and has many times been a front runner in Europe with its enforcement policy. It operates in a legal setting where substantive and procedural laws are reviewed and amended regularly. There have been four fundamental reforms of the Act against Restraints of Competition (GWB) since 2005.[1]

Because antitrust fines can only be based on the substantive law that was in force at the time when the competition law infringement was committed, many of the cases pending before or decided by German courts and the FCO nowadays are still dealing with former versions of the GWB; therefore, to illustrate the enforcement trends and precedents of the period covered, this article first presents some essential background information, then touches on numbers and trends in fining decisions issued by the FCO and leniency applications. It highlights the most relevant cartel fines cases that have gone to appeal, the state of the famous sausage gap and the status of judicature on the liability of board members for the company’s cost incurred for paying the cartel fine and damages. Finally, 2021 was the first year after the German parliament had passed the long-awaited tenth amendment to the GWB (the GWB Digitalisation Act) in January 2021.[2]

In its last annual review, the FCO announced that it would adopt a tougher approach to investigations. It stated, for example, that it was planning on carrying out more unannounced searches (dawn raids) in 2022. Actually, on 18 January 2022, these announcements materialised when cable manufacturers were raided. Furthermore, the FCO plans to make leniency applications more attractive by taking into account the risk of private follow-on damages claims. This seems necessary from the perspective of public enforcement, as leniency applications have, to some extent, become unpopular because of the increased risk of private damage claims. The guidelines on the FCO’s leniency programme (published at the end of 2021)[3] are intended to remedy this. The FCO is even reflecting on whether to fully indemnify key witnesses from claims for damages caused by cartels.

Background: particularities of German cartel enforcement procedure

German cartel enforcement – be it enforcement of article 101 of the Treaty on the Functioning of the European Union (TFEU) or the German equivalent in section 1 of the GWB – follows the procedural rules of criminal enforcement. Other than the European Commission, the FCO needs to address (and may fine) at least one individual in a leading position who has either been participating in the cartel activity or has (negligently or intentionally) not fulfilled supervision obligations (instruction, organisation and control), thereby facilitating an infringement committed by an individual acting for or on behalf of the undertaking.

No fine can be imposed if the individual’s cartel conduct cannot be identified. In practice, the FCO fines between one and three individuals from senior management of each company involved in a misconduct (provided that their involvement can be proven) as well as the undertaking itself.

If a company files for leniency, it usually includes those individuals who have acted for the company, thereby extending the leniency benefits to them. Any individual can, in principle, blow the whistle and request leniency just for himself or herself, although this rarely happens.

If the cartel activity concerns tenders, individuals involved are subject to criminal sanctions according to the Criminal Code, instead of just an administrative fine. In those types of cases, a leniency application will not relieve the individuals of pending criminal sanctions. However, an individual’s contribution to the cooperation is likely to be taken into account as a mitigating circumstance when it comes to determining the criminal sanction for that individual. If an individual is to be criminally prosecuted, the FCO will go after the undertaking, and the criminal prosecution services will target the individual; both authorities can work in parallel or consecutively. A recent example is the technical building services cartel, in which the FCO ended its proceedings by imposing fines on undertakings while the criminal proceedings pursued by the prosecution service in parallel against the individuals had not yet been concluded. The tenth amendment has increased the powers of the FCO in criminal court proceedings: in court the FCO has now the same rights as the prosecution service.

Infringement decisions of the FCO can only be contested in front of the Appeal Court’s specialist cartel senates. Unlike the EU courts, the Appeals Court will not merely review whether the fining decision was justified and whether the FCO has acted within the limits of its discretionary powers; rather, the Appeals Court must apply the standards of criminal proceedings and, therefore, must establish every single fact in a public hearing, including full witness hearings.

Cartel appeal trials are, therefore, quite burdensome on all parties; they usually take between 20 and 50 days in court – in extreme cases, they can take up more than 100 hearing days[4] (former examples include 136 days in the liquid gas cartel).[5] The length of such trials combined with the possibility of the Appeals Court to increase the fine (reformation in peius) has been a strong incentive for undertakings to settle with the FCO rather than to take the case to court or, when in court, to withdraw the appeal.

A prominent example is the beer cartel, in which the FCO imposed fines on six undertakings amounting to a total of €336 million. Two undertakings appealed. One of them, Radeberger brewery, withdrew its appeal against a €154 million fine on the day before the hearing as it feared that its fine could soar to €1 billion should its appeal not succeed.[6] However, the proceedings developed, surprisingly, which underlines the unforeseeable risks for undertakings in such court proceedings. The Federal Court of Justice[7] overruled the decision of the Appeals Court,[8] which had ceased the proceedings on the grounds of absolute statute of limitations; the proceeding is now reheard and decided by a different senate of the Appeals Court.[9] The case is pending.

In the following sections, we highlight some of the cases, including cases that have not been settled. The examples explain how those cases have affected the balance of power between undertakings and the FCO when negotiating settlements and deciding whether to appeal the case.

Proceedings and fines at FCO level: number crunching

While the number of new behavioural proceedings (non-hardcore horizontal cases) appears to have remained more or less stable in the past few years, with an intermediate ‘drop’ in 2019,[10] the number of typical hardcore proceedings in which dawn raids have been executed and the number of leniency applications have decreased once more. The overall fines dropped from a total of €358 million in 2020 to only €105 million in 2021 (involving 11 undertakings).[11] The sectors affected were stainless steel production and steel forging, musical instruments, school bags and entertainment electronics.[12] Nine companies provided the FCO with new information on infringements in their sector via leniency applications, and the FCO also received further information from other sources. On two occasions in 2021 – under strict covid regulations – the FCO carried out dawn raids. A further reduction in number of raids was significantly caused by the covid pandemic:

 2017201820192020[13]2021
Dawn raids (number of undertakings involved)11 (69)7 (51)5 (32)2 (3)2
Leniency applications372116139
Proceedings closed with fines7465[5]
Overall fines imposed (€)60 million376 million848 million349 million105 million
Undertakings fined1622231911
Individuals fined112012248

The names of individuals fined and the amounts of the fines imposed on them are not published by the FCO. Hence, specific up-to-date data is not available. However, from the FCO’s former statistics, it can be established that between 2011 and 2020 the FCO fined 302 individuals an overall amount of €23.6 million. The average fine imposed in that period amounted to approximately €80,000. An earlier FCO report had, however, shown that the highest fine imposed on a single individual in between 2008 and 2015 had amounted to €800,000.[14]

The year 2021 did not see any spectacular new cases closed with particularly high fines by the FCO, such as the largest overall fine by far (€646 million), which was imposed on steel manufacturers for cartelising the production of quarto plates in 2019.[15] Fines imposed in 2021 include those on manufacturers of road canal systems (€6 million),[16] stainless steel companies (€355 million overall, not all of which imposed in 2021),[17] manufacturers and dealers of musical instruments (€21 million – vertical price-fixing),[18] manufacturers of school bags (€2 million – vertical price-fixing)[19] and manufacturers of entertainment electronics (€7 million – vertical price-fixing).[20] For more details on fines imposed in 2020 and 2019, please see our reports from 2021 and 2020.

Like many other antitrust authorities, the FCO offers a settlement bonus of 10 per cent. The vast majority of cases (virtually all that do not go on appeal) are therefore closed by way of settlement.

Owing to various factors, undertakings perceive the option not to settle as risky – particularly given that the Appeals Court has significantly increased fines in a number of cases. Furthermore, a settlement decision is a relatively short text compared to an full-blown fining decision and may, therefore, provide less information for cartel damages claimants; hence, an undertaking will endeavour to appeal (and not settle) only if it considers that there is a substantial chance to escape the fine altogether (eg, because the statute of limitation has been exceeded).

Owing to the burden of the appeals procedure that includes a large number of days in court, the FCO, in turn, has a strong incentive to settle so it can spend its resources on pursuing cartels rather than on defending its decisions in lengthy proceedings.

While an appeal may result in higher fines, if the Appeals Court finds the undertakings to be guilty, more recent cases have shown that the Appeals Court sides with the undertakings fined on substance in some cases.

Leniency: flattening the curve?

For two decades, the FCO has employed a leniency programme (launched in 2000 and overhauled in 2006). Private practitioners have frequently criticised the somewhat opaque practice that differs from case to case, depending on which unit within the FCO deals with the case, while also praising the flexibility of the FCO.

In some cases, leniency applications submitted after dawn raids have been executed still led to comparatively high reductions. This has triggered the speculation that the FCO may have deliberately wanted to discourage perpetrators from seeking refuge to the Appeals Court and instead enter into a settlement, thereby closing the case at that stage. This type of speculation may or may not have grounds; however, undertakings that have simply done their best to reduce their fine will certainly not complain, and the FCO legitimately has no interest in having its resources tied up by many days in court.

In some respects, the recent amendment of the law leads to a higher degree of legal certainty for leniency applicants as the cornerstones of the leniency programme – including the possibility of placing a marker (section 81m of the GWB) – have been incorporated into the law, thereby making them binding on the Appeals Court also.

It seems that the dust stirred up by the European Court of Justice’s Pfleiderer judgment has settled, at least in Germany. Since 2011, when the judgment was passed, the number of leniency applications to the FCO had been increasing steadily over the years, peaking in 2015 (76 applications); however, since then, it has been constantly decreasing: 59 in 2016; 37 in 2017; 21 in 2018; 16 in 2019, 13 in 2020, and nine in 2021.

The further drop in 2021 should not be overstated; it was probably caused by the covid pandemic, during which companies may have focused on other issues (and less on internal investigations and compliance measures, which typically lead to a disclosure of misconduct and subsequent leniency applications).

However, there is surely a connection with the trend of rapidly increasing numbers of (successful) private damages claims. Those were sparked by legal amendments in 2005, 2009 and 2017, one being the rule that in a damages action a civil court may not question whether a company participated in an antitrust infringement if the FCO has held so. This development has led the FCO’s president, Andreas Mundt, to raise the question of how to make leniency more attractive again for the whistle-blower – considering providing the first leniency applicant with more than just exemption from a cartel fine, but also granting further benefits, particularly through protection from follow-on damages claims.

While the FCO will not disclose leniency applications and accompanying material to third parties pursuing damages claims against cartelists, the authority will hand out infringement decisions. The decisions may be relatively short (with often only a couple of pages describing the infringement) if an undertaking enters into a settlement with the FCO. If there is not a settlement, the decisions are much longer and contain much more information on the infringement; however, whether that information is helpful to prove the claim (in particular to quantify damages) is a different matter.

The number of applications to the FCO to disclose infringement decisions has risen significantly over the past few years. While Parliament has laid the legal basis for damaged parties in 2017 to claim information from cartelists, leaving access to the FCO’s files only as a last resort, it had been a matter of dispute whether this new rule applies only to damages actions that are based on infringements that occurred after 27 December 2016. The 10th amendment to the GWB has now clarified that this rule shall also apply to infringements committed before that date.

Appeal of fine decisions: no risk, no fun?

During the past few years, some FCO decisions that imposed fines have been appealed to the Appeals Court. The Appeals Court has – after conducting its own proceedings – substantially increased the overall fines in various cases.

Famous decisions that have led to significantly higher fines imposed by the Appeals Court than those imposed by the FCO include liquid gas[21] and wallpaper (overall increase to more than 130 per cent of the initial fines),[22] confectionery products (overall increase to 150 per cent)[23] and Rossmann (600 per cent).[24]

This reformatio in peius is compliant with German constitutional law and stems from the specific German procedural system, according to which the Appeals Court assesses all facts of the case from scratch and decides on a possible fine independently of the fine imposed by the FCO.

Nevertheless, those decisions of the Appeals Court increasing the fines to such an extent have been widely (and harshly) criticised by the industry and private practice as they have been perceived to de facto hinder companies in appealing against the FCO’s fine decisions (and at an earlier stage urge them into settlement agreements with the authority or to withdraw the appeal).

Moreover, whereas the FCO has issued (self-binding) guidelines for the setting of fines, the Appeals Court is not bound by them and only has to take into account that fines cannot exceed 10 per cent of the company’s group global turnover. Criticism has been voiced to the effect that appealing a fine decision would bring a systemic change of the calculation of the fine and, therefore, automatically lead to an increase of it.

A new provision introduced by the tenth amendment to the GWB now explicitly specifies that – as in EU law and prior case law – the gravity and duration of the infringement must be taken into account when determining the amount of the fine. Furthermore, other factors are to be taken into account, such as the effects of the infringement and (for the first time) compliance efforts pre- and post-infringement, which is an important change.

The provisions still leave wide discretion for the courts. The FCO recently revised its fining guidelines, taking into account the new rules.[25] However, substantial uncertainties remain.

In any case, the Appeals Court has also significantly reduced or even cancelled fines (eg, for exceeding the statute of limitations for prosecuting the alleged infringement). Some of those decisions may not have received the same attention as those raising the fines.[26] However, there have recently been some important decisions supporting the fined undertakings’ points of view, which have been perceived as a slight counter-trend. The decisions show that the Appeals Court and, on further appeal, the Federal Court of Justice (FCJ) take a close look at the cases and that an appeal can be helpful if the fined companies have substantive arguments apart from the mere calculation of the fine. Those developments show that appeals to cartel proceedings in Germany are alive and kicking. At the same time, the FCJ has also sent cases back to the Appeals Court where it found the Appeals Court had wrongly sided with the applicants.

Whereas the Appeals Court substantially increased most of the fines imposed by the FCO in the confectionery proceedings,[27] the FCJ overruled the Appeals Court and remanded the proceedings to a different senate of the Appeals Court in June 2019. The FCJ held, in particular, that the Appeals Court did not sufficiently consider the defending statements of the appealing companies but, in contrast, too uncritically followed statements of leniency applicant witnesses.[28]

The case is of specific interest to all industries and receives major attention as it concerns the limits of a lawful information exchange (in particular in meetings of industry associations), which has significant importance beyond the confectionery industry. In this case, the FCO had followed a very broad concept of the ban on cartels, which reflects paradigmatically the authority’s increased vigorous competition law enforcement over the past few years. The case is still pending at the Appeals Court.

Similarly, the FCJ quashed the Appeals Court’s judgment in the Rossmann case on the basis of a purely procedural flaw within the appeals procedure. In this case the Appeals Court had increased the original fine (imposed in 2015) by 600 per cent to €30 million. The decision underlines the relevance of the German courts applying criminal procedural rules, which are not to be taken lightly when deciding on cartel fines.

The case was remanded to a different senate of the Appeals Court,[29] which needed to fully try the case from scratch, including hearing all witnesses again. Rossmann, however, decided not to appear in court, so in 2020 the Appeals Court dismissed the appeal, which meant that the original fine (€5.25 million) remained in force.[30] In the meantime, the FCO successfully appealed the Appeals Court decision to not try the case but to leave it with the original FCO fine, stating that procedural law does not allow not entering into a full trial. Hence, the case was remanded for a second time to the Appeals Court for a full trial. The FCJ confirmed that the withdrawal of the objection after the start of the main hearing was ineffective without the consent of the Attorney General’s Office.[31] The case demonstrates that there is a real risk of seeing a fine substantially increased by the courts when appealing a fine decision – with the company concerned no longer being in control of the outcome of the court proceedings.

Although the FCO was overruled by the Appeals Court with regard to the beer cartel, the FCJ – upon appeal of the FCO – in turn overruled the Appeals Court and sent the case back to another senate of the Appeals Court. This is one of the rare cases in which the undertaking concerned (Carlsberg) firmly held that it had not participated in the cartel at all, although a couple of leniency applicants had settled on the basis that Carlsberg had been involved in their admitted wrongdoing.

After 20 days of oral hearings, the prosecutor had requested in the original trial before the Appeals Court that the fine be raised from €65 million to €250 million; the Appeals Court, however, acquitted the accused. The Appeals Court was of the opinion that it was, if at all, only proven that Carlsberg had participated in a mere information exchange that had not resulted in an agreement and had, therefore, ended with the exchange of the information. Considering the statute of limitations, the Appeals Court ruled that this could no longer be prosecuted. The FCJ ruled that, based on the decision of the Appeals Court, it could not be securely determined that the absolute statute of limitations (10 years) had been exceeded.

An information exchange in itself does not suffice to find an infringement; rather the infringement also requires certain factual coordinated behaviour on the market based on that information exchange as a second element in a concerted practice. The FCJ found that the Appeals Court’s findings were flawed in assuming that there had been no influence on the market behaviour. The Appeals Court should have taken into consideration the factual (albeit rebuttable) presumption that, according to FCJ and ECJ jurisprudence, undertakings are likely to take into account such sensitive information in their market behaviour.[32]

While market behaviour is, on the one hand, the necessary prerequisite for an illegal concerted practice, the concerted practice, on the other hand, does not end as long as the market conduct continues. The FCJ concluded that the infringement still continues as long as the product for which the market behaviour has been influenced is still on the market.[33] The case is now once again pending at the Appeals Court for a full retrial.

In other proceedings, the FCJ confirmed its legal position on prescription in a decision concerning bidding cartels. According to the FCJ, the limitation period does not start from the conclusion of the contract but only from the complete execution of the contract (ie, when the final invoice is issued).[34] The latter decision is interesting as it runs counter to an ECJ judgment issued shortly thereafter: the ECJ concludes that the end of a bid-rigging cartel is usually defined by the date of concluding the contract between the company that won a bid and the entity that invited the tender.[35]

Undertakings accused of participating in a regional beer cartel (a different one from the beer cartel mentioned above) gained a spectacular victory over the FCO in 2021. The Appeals Court[36] acquitted several breweries from North Rhine-Westphalia of the charges of illegal price-fixing. In 2014, the FCO had imposed fines totalling €338 million on several breweries, associations and persons responsible for illegal price agreements.[37] The charges related to alleged price-fixing at a meeting of the North Rhine-Westphalia Brewers’ Association at the beginning of September 2007. The Senate was unable to establish the alleged beer price agreements between the breweries; most of the witnesses did not remember any incidents and the memories of the witnesses who testified were too vague to carry a conviction for illegal behaviour.[38]

Sausage gap closed

The infamous German sausage gap seems to have been finally closed as a result of amendments to the law in June 2017, which introduced a parental liability corresponding to the European role model.

The sausage gap derives its name from a case in which the FCO prosecuted a cartel of sausage manufacturers but was not able to enforce fines of approximately €238 million due to internal restructurings of some of the cartelists. The gap resulted from the fact that the FCO was entitled to impose a fine not on groups of companies but only on the legal person who, by acts of its employees, had committed the infringement – similar to the principle of criminal law that one family member cannot be imprisoned for a crime committed by another member of the family.

As a consequence, several groups of companies were able to avoid liability by making the infringing legal entity disappear while shifting the assets to another group company; if the family member who committed the crime dies, the prosecutor will stop the prosecution, and the court will not ask the deceased, or the deceased’s family, to serve the sentence. The restructuring was not as simple as it sounds (eg, it was not possible to go free by shifting the assets to another subsidiary, which basically continued exactly the same economic activity of the company that had been involved in the cartel), but in several cases – such as the sausage cartel – it worked.

In 2013, the legislator narrowed the gap but still left a loophole. Now, the liability for fines has been extended to the economic unit to which the infringing company belongs (ie, to the group of companies). This has been the legal situation in EU law all along.

It can thus be stated that, at least for infringements committed after 2017, the sausage gap has been closed. Battles that are fought now are circulating around pre-2017 infringements, with proceedings against various companies being presently terminated by the FCO for ‘reasons of discretion’ (or the fines being unenforceable).

One of those old and as yet unsettled cases is still pending with the European Commission. When – after three years of pursuing the case – the FCO detected that several metal packaging manufacturers subject to the proceedings undertook internal restructuring, it found ‘increasing evidence that the cartel was not limited to Germany but also concerned other EU Member States’. It referred the investigation to the Commission, which does not need to be concerned about the sausage gap, which does not apply under EU law. One undertaking’s challenge of the Commission’s decision to initiate the infringement proceedings was rejected by the European Court of Justice at the beginning of 2020.[39] Thus, the investigation is still pending with the Commission.

D&O’s delight: managers need not compensate companies’ fines, yet damages?

In the previous edition, we reported on the first ever judgment of a German civil court on the question of whether members of the board are liable to the company for fines and lawyers’ fees incurred by the company as a consequence of the company’s antitrust law violation.[40] Long before that case was dealt with in court, a claim for manager liability was filed in the aftermath of another cartel: in 2012, the Federal Cartel Office imposed a fine on ThyssenKrupp (approximately €191 million) for participating in the Railtrack cartel. Faced with a number of damages claims, ThyssenKrupp agreed on settlements (eg, with the state-owned railway operator Deutsche Bahn for an amount of approximately €100 million). In 2014, ThyssenKrupp started an action for damages amounting to approximately €300 million against former members of the executive board allegedly involved in the cartel (known as the Sehlbach case). Proceedings before various courts dragged on for eight years and, according to media reports, came to an end in January 2022. Reportedly, in an out-of-court settlement, liability insurers, led by Allianz Global Corporate & Specialty and IAG, paid a double-digit-million amount in euros. The exact figures are not publicly known, but it is said that the settlement is for less than 10 per cent of the amount claimed (ie, less than €30 million). According to reports, the managers did not need to contribute to that amount.

Reform of the GWB and the effects on cartel proceedings passed

In January 2021, German parliament passed the long-awaited 10th amendment to the GWB. In addition to implementing the ECN+ Directive (EU) 2019/1 (which entails, among other things, an expansion of the investigative powers of antitrust authorities), the reform brought major changes for the digital economy and new provisions regarding fines, damage claims and merger control. It provides, among other things, for the following important changes affecting cartel procedure and, overall, provides the FCO with more powers than it previously had:

  • codification of some cornerstones of fine calculations as binding on the FCO and the Appeals Court, which aim, albeit unlikely, to completely remove the different approaches of the authority and the court in setting fines;
  • codification of cornerstones of the leniency programme, making it binding on the Appeals Court as well;
  • specific rules for fines on associations and the possibility to have them eventually enforced against the association’s members;
  • additional investigative powers for the FCO (aligning them with EU law, such as the obligation for companies to proactively produce documents and provide information during dawn raids), while still not granting full legal privilege for attorneys’ correspondence;
  • extending the statute of absolute limitation to the detriment of undertakings under investigation: the absolute statute of limitations for prosecution under German law in general remains 10 years; however, it is extended for the duration during which legal proceedings are pending before the courts, which means that the absolute statute of limitations for prosecution can no longer be invoked during ongoing court proceedings; and
  • the enshrinement of some sort of compliance defence, making it possible to reduce fines because of compliance measures carried out before or after the infringement: the measures required depend on the individual case and, in particular, on the type, size and organisation of the company, the number of employees, the regulations to be observed and the risk of their violation. In the case of small and medium-sized enterprises with a low risk of infringement, a few simple measures may be sufficient;[41] however, it remains to be seen the extent to which the FCO acknowledges companies’ compliance measures when setting fines.

Competition register

By setting-up the ‘competition register’ in 2021, the FCO created a digital database that allows over 30,000 contracting authorities in Germany to obtain information about breaches of competition law and other economic offences by bidders before awarding a contract, and to exclude offenders from the contract-awarding process. Things will get serious for companies from June 2022. From then, before the award of a contract worth €30,000, each contracting authority will be obliged to inquire with the competition register. For this reason, companies that were found to have infringed competition law have already engaged in ‘self-purification’, in particular by implementing compliance measures (such as compliance management systems), and have engaged in compensation for damages. This is – and will be – necessary in order to be removed from the register’s ‘wall of shame’.


Notes

[1] Seventh amendment to the German Act against Restraints of Competition (GWB) of 2005 (inter alia, taking account of the changes prompted by Regulation 1/2003), eighth amendment to the GWB of 2013, ninth amendment to the GWB of 2017 (inter alia, taking account of the changes prompted by the Damages Directive 2014/104/EU) and, most recently, the 10th amendment to the GWB (implementing, inter alia, the ECN+ Directive (EU) 2019/1 and making amendments to account for the specific challenges to antitrust by the digital economy).

[2] Tenth amendment to the GWB (see footnote 1).

[4] Ost/Breuer, NZKart 2019, p. 119 et seq.

[5] ‘Bußen falsch berechnet: OLG Düsseldorf muss Verfahren gegen Flüssiggaskartellanten neu aufrollen‘, Juve (29 January 2019).

[6] ‘Bierkartell: Carlsberg kämpft mit Baker, Radeberger kapituliert mit Mütze Korsch‘, Juve (13 June 2018).

[7] Federal Court of Justice, order of 13 July, 2020 (KRB 99/19).

[8] Decision of the Appeals Court of 3 April 2019 (V-4 Kart 2/16 OWi).

[9] Bundeskartellamt Tätigkeitsbericht (FCO activity report) 2019/2020, p. 64 (www.bundeskartellamt.de/EN/AboutUs/Publications/Activityreports/activityreports_node.html).

[10] 39 in 2017 and 40 in 2018 (see ‘Tätigkeitsbericht des Bundeskartellamts 2017/2018’, pp. 135 and 136); 20 in 2019, 36 in 2020 (see Tätigkeitsbericht des Bundeskartellamts 2019/2020, p. 157).

[13] Jahresrückblick des Bundeskartellamts 2020, pp. 2–3.

[14] ‘Tätigkeitsbericht des Bundeskartellamtes 2015/2016’, for the period of 2008–2015, pp. 32–34.

[15] Federal Cartel Office (FCO) press release, ‘Steel manufacturers fined approx. €646 million for agreeing on prices of quarto plates’ (12 December 2019).

[16] FCO case report, B11-8/18 (14 January 2021).

[17] FCO case report, B12-22/15 and B12-21/17 (28 September 2021).

[18] FCO case report, B11-31/19; B11-33/19 (5 August 2021).

[19] FCO case report, B10-26/20 (1 October 2021).

[20] FCO case report, B10-23/20 (11 November 2021). For more details on fines imposed in 2020 and 2019, please see prior version of this case.

[21] Court proceedings continued after two undertakings appealed, see Bundeskartellamt Tätigkeitsbericht (FCO activity report) 2019/2020, p. 127; www.bundeskartellamt.de/EN/AboutUs/Publications/Activityreports/activityreports_node.html.

[22] ‘Tapetenkartell: Gericht erhöht Bußgelder für Mandanten von Hengeler und Gibson Dunn, Juve (17 October 2017); judgment final and binding (see Bundeskartellamt Tätigkeitsbericht (FCO activity report) 2019/2020, p. 75; www.bundeskartellamt.de/EN/AboutUs/Publications/Activityreports/activityreports_node.html).

[23] Informationsaustausch: OLG erhöht Bußgelder im Süßwarenkartell, Juve (6 February 2017).

[24] Proceedings still pending: On appeal of the General Prosecutor’s Office, the BGH annulled the order of the Higher Regional Court of 17 August 2020 and referred the case back to another Cartel Senate of the Higher Regional Court of Düsseldorf (BGH, Cartel Senate, Order of December 24, 2021 – KRB 11/21 – Unexcused absence of secondary parties (Rossmann).

[26] Ost/Breuer, NZKart 2019, p. 119 et seq (the authors from the FCO underline that fine reductions had gone unnoticed).

[27] See footnote 23.

[28] ‘Alles von vorn im Süßwarenkartell: OLG Düsseldorf fängt sich eine Klatsche beim BGH, Juve (18 July 2019).

[29] BGH: CMS-Mandantin Rossmann bekommt neue Chancen im Streit um Kartellbußen‘, Juve (13 August 2019).

[30] Higher Regional Court of Düsseldorf Press Release No. 27/2020, Kaffeekartell: Keine erneute Prüfung der Vorwürfe und des Bußgelds gegen die Dirk Rossmann GmbH‘ (17 August 2020).

[31] FCJ, Cartel Senate, decision of 24 December 2021 – KRB 11/21 – Unexcused absence of secondary parties (Rossmann).

[32] The FCJ, however, clarifies that under the principle of presumption of innocence, the presumption could only be a mere indication that must be weighed alongside all other circumstances of the case. As such, the Appeals Court must show that it has done an overall assessment, also taking the presumption into consideration.

[33] With regard to FCJ, Decision No. KRB 99/19 of 13 July 2020: ‘Zu früh gefreut: BGH kassiert Carlsberg-Sieg im Bierkartell’, Juve (13 October 2020); Luther, ‘ECJ defines end of bid-rigging cartels and limits of enforcement’ (29 January 2021).

[34] With regard to FCJ, Decision No. KRB 25/20 of 25 August 2020: Luther, ‘ECJ defines end of bid-rigging cartels and limits of enforcement’ (29 January 2021).

[35] European Court of Justice, decision of 14 January 2021, Kilpailu- ja kuluttajavirasto, Case No. C-450/19: Luther, ‘ECJ defines end of bid-rigging cartels and limits of enforcement’ (29 January 2021).

[36] Appeals Court on 8 September 2021 acquitted several breweries from North Rhine-Westphalia (V-4 Kart 4/16 OWi).

[37] FCO case report, B10-105/11, 2 April 2014.

[38] Press release no. 29/2021, Higher Regional Court of Düsseldorf (8 September 2021); https://www.olg-duesseldorf.nrw.de/behoerde/presse/Presse_aktuell/20210908_PM_NRW-Bierkartell/index.php.

[39] European Court of Justice, decision of 29 January 2020, Silgan, Case No. C-418/19.

[40] Judgment of 15 September 2020, LG Saarbrücken, Case No. 7 HK O 6/16, CB 2020, p. 79 et seq with annotation by Borbála Dux-Wenzel and Helmut Janssen.

[41] Recommendation for decision and report of the Committee on Economic Affairs and Energy, BT-Drs 19/25868, 13 January 2021, p. 123.

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