On February 28, 2018, the DCA significantly increased the fine that the FCO had imposed on drug store chain Dirk Rossmann GmbH (“Rossmann”) nearly sixfold.[1] However, at the time, the DCA only issued a press release which left ample room for speculation about the precise reasoning behind the court’s decision to increase the fine. The DCA now published a non- confidential version of its judgment that provides further insights.

Back in 2015, the FCO found coffee producer Melitta Kaffee GmbH (now Melitta Europa GmbH & Co. KG, “Melitta”) and five retailers, including Rossmann, had fixed the prices for roasted coffee. Consequently, the FCO imposed a fine of €5.25 million on Rossmann,[2] which the DCA increased upon Rossmann’s own appeal by around 470% to €30 million. This was not only the first fine increase in a vertical case but also the highest percentage increase ever imposed by the DCA. The DCA had previously once increased a fine by about 250%[3], whereas in all other cases the increases were between approximately 5-50%.

Such a reformatio in peius, i.e., a situation where an appellant is put in a worse position than if it had not appealed, is possible because the DCA not only reviews the FCO’s decision, but also conducts its own complete assessment of the case, including setting an appropriate fine. In Rossmann’s case— but also in other similar cases—the main reason for the significant gap between the FCO’s and the DCA’s fines was that the court did not apply the FCO’s 2013 Fining Guidelines. This meant that the court did not calculate its fine based only on Rossmann’s German turnover affected by the anticompetitive conduct—as the FCO had done— but took into account 10% of Rossmann’s total worldwide revenues as a basic range for its fine.[4] Especially in the case of multi-product companies and large corporate groups, such as Rossmann, this difference in methodology typically leads to substantially higher fines. Rossmann has appealed the decision to the FCJ.[5]

The DCA’s Rossmann decision is in line with the court’s case law on the determination of cartel fines since 2012, when it began to calculate fines based on companies’ worldwide turnover.[6] Since then, it has imposed fines for 21 infringements, increasing the FCO’s fine 11 times and reducing it 10 times. Given the uncertainty associated with a complete reopening of the case by the DCA and the application of a different standard for the calculation of fines, companies have started to think twice before appealing FCO fining decisions to the DCA. In addition, some companies, e.g., Radeberger, have even withdrawn their appeal during the proceedings before the DCA.

[1]              DCA decision (4 Kart 3/17 OWi) of February 28, 2018, only available in German here.

[2]              FCO Case Summary (B10-50/14), “Bußgelder wegen vertikaler Preisabsprachen beim Vertrieb von Röstkaffee”, January 18, 2016, only available in German here.

[3]              The DCA increased the FCO’s fine against CFP Brands amounting to €1.4 million by about 250% to €5 million, see DCA decision (V-4 Kart 6/15 OWi) of January 26, 2017, only available in German here.

[4]              The DCA then conducts adjustments within this range based on mitigating or aggravating factors.

[5]              See Rossmann’s Press Release of March 3, 2018, only available in German here.

[6]              Prior to the Seventh Amendment of the ARC in 2005, fines could amount up to three times the additional revenues gained through the infringement (kartellbedingter Mehrerlös).