On April 5, 2019, the DCA annulled a €62 million fine that the FCO had imposed on Carlsberg Deutschland GmbH (“Carlsberg”) in 2014 for its participation in price-fixing agreements in 2006 (draught beer) and 2008 (draught and bottled beer) in Germany.[1] In addition to Carlsberg, the FCO had fined ten other breweries, one trade association and 14 individuals in the total amount of €338 million (including Carlsberg’s fine).[2]

The DCA held that Carlsberg had not been part of an overall price-fixing agreement, but had only participated in an information exchange on a single occasion in March 2007. Further, it held Carlsberg’s cartel infringement to be time- barred. Under German competition law, cartel infringements are subject to an absolute statute of limitations of ten years, which begins to run when the infringement was committed (or, in the case of a single and continuous infringement, from the date it ceased). The DCA found that Carlsberg’s participation in the anti-competitive information exchange ended with the conclusion of the March 2007 meeting and thus triggered the statutory limitation period. Given that the appeal process did not suspend the statutory limitation period, it expired in 2017 and the DCA was prevented from issuing a revised fining decision against Carlsberg and had to annul the FCO’s decision.

Radeberger Gruppe KG (“Radeberger”), another brewery, which had also appealed the FCO decision, withdrew its appeal shortly before the first oral hearing and agreed to pay its €160 million fine. Radeberger wanted to avoid a possible fine increase in the appeal proceedings.[3] The General Prosecutor’s Office Düsseldorf has appealed the decision to the FCJ.

[1]              DCA decision (V-4 Kart 2/16 (OWi)) of April 5, 2019. At time of publication, the decision had not been published yet.

[2]              FCO Case Summary (B10-105/11), “Bußgelder gegen Brauereien”, April 2, 2014, only available in German here.

[3]              Find more information on the risk of the DCA increasing fines in this issues’ article “DCA Finally Publishes Rossmann Judgment That Significantly Increased Fine For Vertical Price Fixing”.