According to reports in the media, the Düsseldorf Higher Regional Court has toppled the Bundeskartellamt’s fines practice in a decision which has not yet been made public. These reports require further explanation:
In an amendment to the Act against Restraints of Competition (ARC) in 2005 the level of fines applied to competition law infringements was brought into line with European legal practice. Since then a fine imposed on a company can amount to up to 10% of its turnover (Section 81 (4) ARC).
The level of the fine in individual cases is set according to certain clear-cut and transparent criteria. Beginning with the so-called turnover achieved from the infringement, the duration and gravity of the infringement are also taken into close consideration. The criteria are laid down in detail and published in the Bundeskartellamt’s Guidelines on the setting of fines (cf: www.bundeskartellamt.de).
In its previous decisions the Bundeskartellamt has never had to impose the maximum amount possible based on the guidelines. The fines are generally set at well under 10% of the turnover of the companies concerned.
In its judgment of 29 June 2009 the Düsseldorf Higher Regional Court expressed an interpretation of the maximum basic level of fine possible within the law of 10% of company turnover which deviates from the legal opinion and application practice of the Bundeskartellamt. This resulted in a lower fine being imposed on one of the companies involved in the specific case.
President Andreas Mundt stated: “Were the Bundeskartellamt to follow the interpretation of the Düsseldorf Higher Regional Court in future, this could also lead to distinctly higher fines in many other cases. The decision is not yet final. Until a decision by the Federal Court of Justice as the final appeals court, the Bundeskartellamt sees no reason to change its current fines practice, which is in line with that of the European Commission and most of the EU Member States.”