Federal Court to divide a legal union cartel fine under joint and several debtors
The Federal Court has dealt with the question, criterion according to which a fine, which has imposed several companies jointly by the European Commission, to be distributed internally to the individual debtor.
The plaintiff was the sole shareholder of defendant 2, in August 2004 all the shares in the defendant 1 acquired. At this time, the defendant took workers to 1 for several months cartel agreements for the distribution of calcium in part, they from July 2005 widened in the distribution of magnesium granules. As of November 2006 the applicant sold its shares in the defendant 2, until the 22. July 2007 completely eliminated.
By decision of 22. July 2009 imposed by the European Commission (COMP/39.396, K(2009) 5791 final) against the plaintiff and the defendants jointly and severally a fine of 13,3 My. Euro for infringement of European competition law in the period from 22. April 2004 (Defendant 1) or. 30. August 2004 (Defendant 2 and applicant) to 16. January 2007. The plaintiff and the defendants have challenged the imposition of the fine before the Court of the European Union, which – only after the Court of Appeal decision – by judgments of 23. January 2014 (T-395/09 and T-384/09) the fine imposed on the applicant 12,3 My. Euro has reduced and dismissed the actions for annulment of the parties, moreover,. However, only the defendants have appealed to the Court of Justice of the European Union (C-154/14 P) inlaid.
The applicant paid the fine and the interest about 6,8 My. €. In the present case, it seeks by the defendants jointly and severally to the refund of this amount. It considers, that the fines in the internal relationship should be borne by the defendants, as they, the applicant, did not participate in the cartel itself.
District Court and Court of Appeal have dismissed the action. The Court of Appeal adopted, the applicant had to wear as the parent company in the fine internal relationship, because their potential economic gains from the anti-competitive behavior – through dividends or increase in value of the shares held by it – are accrued. Whether the cartel had actually causes a return, is irrelevant. On causation- or fault on the part did not come to. Claims for damages the applicant did not exist.
The Federal Court reversed the judgment of the Court of Appeal on the revision and remanded the case for a new decision to the Court of Appeal.
In its decision, the Federal Court has continued the judgment rendered in the course of this appeal the Court of Justice of the European Union. Thereafter, the decision on compensation in the internal relationship is, in principle the national courts in accordance with national law. In the present case, this leads to the applicability of German law and therefore of § 426 BGB *.
On this basis, the Federal Court of the employees by the Oberlandesgericht whereas, the applicant must pay the fine as the parent company and economic beneficiary alone, considered unsustainable. According to the principle of § 426 BGB rather to consider all relevant for the assessment of the case circumstances. Compensation claims of a parent company to subsidiary companies can indeed be excluded in individual cases, if there is a profit. The existence of such an agreement, the Court of Appeal but not found.
After referred back to the Court of Appeal will have to determine the relevant circumstances of the dispute. These include, in particular, that the parties can be held accountable causation- and fault contributions and reinvested the basis of the cartel additional revenues or other benefits.
* § 426 BGB (Ausgleichungspflicht, Subrogation)
(1) The total debtors are committed to each other in relation to the same proportions, unless otherwise provided. Can not be obtained by a joint debtors of the contribution due from him, so the failure of the other defaulting debtors adjustment should be worn.
(2) If a joint debtor can satisfy the creditor and ask the other debtors adjustment, is the creditor's claim against the other debtors to him about. The transfer may not be to the detriment of the creditor claims.
Judgment of 18. November 2014, KZR 15/12 – Calcium carbide cartel II
OLG – Judgment of 9. February 2012 – You 3283/11 Map
Wuw / AND-R 3835
LG München I – Judgment of 13. July 2011 – 37 The 20080/10″