On May 7, 2020, the DCA closed the proceedings against Propan Rheingas GmbH & Co KG (“RG”), an alleged member of the liquefied petroleum gas (“LPG”) cartel, thereby ending an almost 15-year saga.

In 2015, the DCA had imposed a €7 million  fine on RG,[1] thereby considerably reducing the fine of €22.5 million originally set by the FCO.[2] Three years later, the FCJ quashed the DCA’s ruling,[3] finding that the DCA did not provide sufficient grounds for refusing to hear a defense witness, who allegedly could have exonerated RG and was present in the courtroom, and referred the case back to the DCA.

This time, the DCA made use of its discretionary power and decided to close the proceedings against RG, as it considered further prosecution of the alleged infringement not to be appropriate. This leaves RG without any binding finding of a cartel infringement and without having to pay any fine.

It remains to be seen whether this will also happen in a parallel case in which the DCA had increased the fines for five other alleged members of the LPG cartel from a total of €180 million to €244 million.[4] In 2018, this decision was also reversed by the FCJ due to an incorrect calculation of the fines.[5] However, since the FCJ did not challenge the DCA’s  finding regarding the cartel infringement as such (but only with regard to the amount of the fine), it probably seems less likely that the DCA will also terminate these proceedings without setting a fine.

[1]      Flüssiggas (4 Kart 7/10 OWI), DCA decision of March 30, 2015, only available in German here.

[2]      Flüssiggas (B11-20/05), FCO decisions of December 14, 2007, February 2, 2008, February 12, 2009 and April 9, 2009 (the latter concerning RG), a Case Summary is available in English here. Cartel members had allegedly agreed to not participate in bids, or only quote extremely high, non-competitive prices if customers attempted to switch.

[3]      Flüssiggas III (KRB 60/17), FCJ decision of October 9, 2018, available only in German here.

[4]      Flüssiggas (VI-4 Kart 2-6/10), DCA decision of April 15, 2013, only available in German here. The DCA does not apply the FCO’s fining guidelines and instead applies a different calculation method, which usually leads to higher fines as it takes the cartelist’s total turnover into account and not only the turnover affected by the cartel. In the present case, the DCA increased the fine, in particular, because the cartel affected a service of general interest over a significant period of time (more than seven years).

[5]      Flüssiggas I (KRB 51/16), FCJ decision of October 9, 2018, only available in German here.