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ARTICLE · 07 MAY 2013

Antitrust Alert: New Court Direction On Antitrust Cartel Fines In Germany

Jones Day
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The German Federal Court of Justice ("BGH") has handed down a decision that is likely to have a significant impact on the setting of cartel fines in Germany, potentially reducing the maximum cartel fine for some defendants.

GermanyAntitrust/Competition Law
Carsten Gromotke
Carsten Gromotke
Johannes Zöttl
Johannes Zöttl
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The German Federal Court of Justice ("BGH") has handed down a decision that is likely to have a significant impact on the setting of cartel fines in Germany, potentially reducing the maximum cartel fine for some defendants.  The decision deals with fines imposed on a number of German cement producers that entered into agreements to fix market shares and distribution areas.  The participants of the cartel challenged the fines imposed by the German Federal Cartel Authority ("BKartA").

Background

Under German law, the maximum fine for antitrust infringements is ten percent of the total sales of the infringer and its affiliates in the financial year before the BKartA's decision (Section 81(4)(2) ARC).  However, the law does not specify how fines must be assessed in individual cases.  It merely says that the "importance of the infringement" must be taken into account (Section 17(3) OWiG).

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