Wettbewerbsökonomische Würdigung, Rechtsnachfolge und Beweiserhebung in Kartellverfahren nach den Urteilen des BGH in Sachen Flüssiggas

Abstract

Competition economics, legal succession, and taking of evidence in light of the German Federal Court of Justice’s decisions concerning the liquefied petroleum gas (LPG) cartel On 9 October 2018, the German Federal Court of Justice (FCJ) quashed the Düsseldorf Court of Appeal’s (DCA) decision that had increased the German Federal Cartel Office's fines on members of the socalled liquefied petroleum gas (LPG) cartel significantly. The FCJ found that the DCA's calculation of the fines was flawed and referred the case back to the DCA – providing guidance on how to assess the basis for the fines correctly. Despite the fact that the FCJ's decision concerned an old version of German competition law which provided that fines for a cartel must be commensurate to the additional revenues gained due to the infringement (kartellbedingter Mehrerlös), this decision will have significant implications for other proceedings related to infringements of competition law, where an abuse of a dominant position (e. g. abuse of pricing) is investigated as well as in cartel damage claims. The principles set out by the FCJ in its decision will most likely be relevant for determining the additional revenues gained in such cases. For example, the FCJ rejected the DCA's intra-market price comparison and heavily criticized how the DCA had dealt with the arguments put forward by the defendants. Furthermore, the FCJ indicated that it might be necessary to involve economic experts to determine the additional revenues gained through an infringement. The article explains in more detail how the DCA had determined these revenues as well as the FCJ's criticism of the DCA's methodology. In parallel proceedings concerning the same cartel the FCJ held a legal successor liable for the infringement where a subsidiary had continued to participate in a cartel instead of the parent company. The FCJ also ruled that if a court wants to reject an application to take evidence in factually complex cartel fine proceedings, it cannot refer only to a general statement that taking of evidence was unnecessary. Instead, the court must give reasons why an investigation was not necessary in the case at hand. This is certainly a positive development as it will allow companies to better defend themselves in court in cartel fine proceedings.