Calculation of fines to be adapted to Federal Court case-law

The recent decision of the Federal Court of Justice (Bundesgerichtshof, BGH) in the cement cartel case (file no. KRB 20/12) has a strong impact on the interpretation of the penalty provision applicable under German cartel law (cf. Bundeskartellamt press release of 10 April 2013).

Andreas Mundt, President of the Bundeskartellamt: "In the coming weeks we will draw up a key framework for calculating our fines in the future. On the whole, I don't expect the level of fines to change significantly. The turnover achieved on the cartelised market will continue to play a significant role, also under the new interpretation of the provision. For the companies concerned the new interpretation can, however, make a difference, depending on the individual case."

Under the German Act against Restraints of Competition, a fine imposed on a company involved in a cartel can amount to up to 10 % of its group turnover. In its decision, the BGH confirmed the constitutionality of this provision. As regards the calculation of the fine, the court interprets the provision as providing a scale of fines, as generally applied in German criminal and administrative offence law. Until now, the Bundeskartellamt had interpreted the 10 % rule as a capping threshold, in line with the European cartel case practice. In individual cases, the two different fining methods can lead to different results.

The Bundeskartellamt's current Guidelines on the setting of fines (available on the BKartA's website) will no longer be applied for the time being.