The German Federal Cartel Authority‘s fining guidelines. Appeals to the record-breaking fine imposed on some cement companies for anticompetitive behavior in the 1990’s have prompted discussion of the rules governing Germany’s current maximum limit on cartel fines and how those rules do or do not fit into European and other international structures.
According to Hans Jürgen Meyer-Lindemann’s 08 May 2013 article in the Frankfurter Allgemeine Zeitung, the Cartel Authority updated its relevant rules in 2006 to match European regulations. IIUC, the German fine for collusion is based on the company concerned’s total collusion sales, averaging 20% of that for the “base fine”; but according to European and now German law the fine cannot exceed 10% of the total worldwide gross from the fiscal year before the year the sanction is imposed. Mr. Meyer-Lindemann wrote that the European Court of Justice in Luxemburg decreed for this purpose the definition of the company should be given a broad interpretation, and thus according to the ECJ not just a national subsidiary’s but the parent corporation’s entire worldwide sales should be used in calculating a maximum upper limit for fines for cartel law violations.
Mr. Meyer-Lindemann felt there remain some loose ends in conforming German to European regulations on this issue. Under European law, he said international corporation parent companies have responsibility in antitrust violations committed by their European subsidiaries. The German supreme court in Karlsruhe’s recent decision on the appeal to the cement companies’ cartel fine merely dealt with how to use international corporate assets to calculate more appropriate maximum antitrust fines and did not deal with assigning responsibility when international corporations are involved in such matters. The European approach of having a 10% maximum limit to cartel fines, he wrote, “has been massively criticized by some German commentators.”
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