New German antitrust fining guidelines — less predictability and larger fines on the horizon

The German competition authority (Bundeskartellamt) has published new guidelines for the calculation of fines for antitrust infringements, which will be applicable with immediate effect. These changes introduce less predictability and potentially larger fines for antitrust infringement in Germany.

Under German law, fines imposed on a company involved in an antitrust infringement can be set as high as 10 per cent of annual group worldwide turnover. Under its former fining guidelines, the Bundeskartellamt set fines primarily as a percentage of the turnover a company had achieved in the cartel-affected market during the cartel period. Where the resulting amount exceeded 10 per cent of annual group worldwide turnover, the Bundeskartellamt capped the final amount of fine at that level. This approach mirrored that taken by the European Commission in its fine setting practice.

In a 26 February judgment concerning a cement cartel, the Federal Supreme Court found this practice unlawful and held that the 10 per cent maximum fine does not constitute a cap but the upper limit of the fining range. The court held that the Bundeskartellamt may only impose fines up to the 10 per cent ceiling for the worst conceivable antitrust infringements (e.g. price fixing over a long period of time)…

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