On June 21 and July 9, 2019, the FCJ annulled two judgments of the DCA relating to the cartels in the confectionary and roasted coffee sectors due to procedural flaws. In both cases, the DCA had previously increased cartel fines set by the FCO. The FCJ referred both cases back to another cartel division of the DCA for a new hearing and ruling. Whether this, however, will result in an actual reduction of the fines remains to be seen.
THE FCJ’S DECISION IN THE “CONFECTIONARY CARTEL”
In 2013, the FCO imposed total fines of €19.6 million on confectionary producers for information exchange at working groups of the “Conditions Association of the German Confectionary Industry” (Konditionenvereinigung der Deutschen Süßwarenindustrie e.V.). On appeal by five of the parties, the DCA not only confirmed the FCO’s decision in January 2017, but also significantly increased the appellants’ fines. Four of them appealed this ruling to the FCJ.
On June 21, 2019, the FCJ annulled the DCA’s ruling, holding that the DCA’s findings were based on an incomplete and thus flawed assessment of the available evidence. The FCJ criticized that the DCA had only taken into account incriminating witness statements but not statements by all parties involved. Because of this incomplete assessment of evidence, the FCJ found itself unable to examine whether the DCA’s assessment of evidence constitutes a viable basis for its decision and, therefore, whether it had correctly applied the substantive law. According to the FCJ, a judgement must demonstrate that the court did not disregard any essential aspect that might influence the assessment of evidence, including the parties’ own submissions. The FCJ therefore set aside the judgment and remitted the case to another cartel division of the DCA for retrial. Interestingly, the FCJ set aside the judgment not only with respect to the appellants, but also with respect to the other parties that had not appealed.
THE FCJ’S DECISION IN “ROSSMANN”
In 2015, the FCO fined coffee producer Melitta Kaffee GmbH and five retailers, including Dirk Rossmann GmbH (“Rossmann”), for price fixing roasted coffee. On Rossmann’s appeal, the DCA increased Rossmann’s fine nearly sixfold in 2018. Rossmann appealed the decision to the FCJ, which annulled the DCA’s judgment.
In its decision of July 9, 2019, the FCJ found the DCA’s delay in filing the judgment to be a procedural error. The DCA would have had to file its judgment no later than 11 weeks after its pronouncement; this period may be exceeded only in unforeseeable and unavoidable circumstances. The FCJ held that, in a collegiate judicial body, such as the DCA’s cartel division, the absence of the DCA’s judge-rapporteur due to health and personal reasons did not constitute such grounds because every judge of the collegiate judicial body is responsible for meeting statutory time limits. The FCJ referred the case back to another cartel division of the DCA for retrial.
 Süßwarenkartell (KRB 10/18), FCJ decision of June 21, 2019, only available in German here.
 Rossmann (KRB 37/19), FCJ decision of July 9, 2019, only available in German here.
 I.e., from €5.25 million to €30 million.
 See our article in the German Competition Law Newsletter March – April 2019, p. 9 et. seq., available here.