Germany: Highest fine in Bundeskartellamt history to be imposed on cement cartel

The Bundeskartellamt has welcomed the decision of the Federal Court of Justice (BGH) to impose fines on a cement cartel. Andreas Mundt, President of the Bundeskartellamt believes that this decision will create the necessary legal security for the Bundeskartellamt to calculate its fines. On a clear statement from the BGH, the Bundeskartellamt will adjust its guidelines on the calculations of fines to the decision.

In the 1990’s, leading producers of cement had formed a cartel to carve up the German cement markets among themselves. For this reason, the Bundeskartellamt imposed fines on several companies in 2003; these were, among others, Holcim, HeidelbergCement, Lafarge Zement and Schwenk Zement or, respectively, their predecessors. These fines were later contested by the companies to the Düsseldorf Higher Regional Court which decided in 2009 that fines amounting to 278.7 million Euros should be imposed on the cartel members. The BGH has now confirmed this decision and merely reduced the fine by 5% on account of the long duration of the proceedings.

The proceedings have therefore now been concluded with fines on these and other companies amounting to a total of 380 million Euros – the highest fine ever imposed in a Bundeskartellamt proceeding.

In the proceedings the BGH also had to decide on the constitutionality of the key provision on the fining of cartel law violations. In 2005, the level of fines imposed for cartel law infringements was harmonized with European legal practice in an amendment to the German competition law (Gesetz gegen Wettbewerbsbeschränkungen, GWB). Since then a fine imposed on a company can amount to up to 10% of its turnover (Section 81 (4) GWB). The provision was disputed among legal scholars. The BGH has now confirmed the constitutionality of this fine provision; it has added the instruction that the limitation of the fine to 10% of the turnover of the respective company should not be regarded as a capping threshold, as is done in European cartel law, but as a maximum value within a range of fines. The amount of fine imposed in the present case was not influenced by the differing methodology.

President Mundt: “The calculation method prescribed by the BGH will probably lead to large companies facing higher fines in the future.”

Full Content: BHG

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