Düsseldorf Higher Regional Court confirms Bundeskartellamt decision in fine proceedings against cement manufacturers

In its ruling of 26 June 2009 the Düsseldorf Higher Regional Court imposed fines totalling 328.5 million euros on the five cement manufacturers HeidelbergCement AG, Holcim (Deutschland) AG, Dyckerhoff AG , Lafarge Zement GmbH and Schwenk Zement KG for concluding quota agreements. Of the original fines imposed, just under 400 million euros have been declared final or have been provisionally confirmed by the court. (Several of the individuals personally involved had withdrawn their appeals; the companies involved also withdrew their appeals for certain individual offences. As a consequence fines totalling 70 million euros became final.)

In the reasons for its judgment, Cartel Division 2a of the Düsseldorf Higher Regional Court established that over a minimum 10 year period (since 1991) the leading cement manufacturers had operated market-wide and intensive quota cartels across the whole of Germany. According to the court the quota cartels were operated in the spirit of a “non-aggression pact” among competitors and with the cartel members’ full awareness of the illegality of their actions.

In 2003 the quota agreements and a number of smaller individual agreements which had been in place since 1991 had been penalized by the Bundeskartellamt with fines amounting to 660 million euros (cf. Bundeskartellamt press release of 14 April 2003). The basis for calculating the fines were the additional proceeds generated by the cartel. Following appeals by the companies concerned and lengthy intermediate proceedings, judicial proceedings were opened in December 2008 at the Düsseldorf Higher Regional Court. After extensive court proceedings with 36 days of hearing, 40 witnesses and the appointment of an economic expert to estimate the additional proceeds obtained from the cartels, the Düsseldorf Higher Regional Court has now delivered its judgment and made it clear that the cartel agreements represented serious violations of cartel law. The fines imposed were lower compared with the Bundeskartellamt's original decisions. The Bundeskartellamt attributed their reduction to the cooperation of some of the companies accused during the proceedings and, in particular, the conservative estimation of the economic expert appointed by the court of the additional proceeds obtained from the agreements, and, as a third factor, the margins of uncertainty allowed for. In addition, partial acquittals were granted in a few cases for lack of evidence for some elements of offence.

HeidelbergCement has already lodged an appeal on points of law against the decision at the Federal Court of Justice. The other four companies and the Bundeskartellamt have a week to appeal on points of law against the decision, if necessary. The written opinion of the Düsseldorf Higher Regional Court is expected to take several weeks.

Proceedings are still pending at the Düsseldorf Higher Regional Court against three small companies (fines amounting to 9 million euros).