In 2021, the German Federal Cartel Office (“FCO”) concluded a long-lasting proceeding into price fixing and information exchange in the stainless steel sector after it had already in early 2021 fined steel forgers € 35 million for information[1], while it unsuccessfully defended its decision relating to an alleged “Kölsch” beer cartel before the Düsseldorf Court of Appeal (“DCA”).  The FCO will find itself before the courts again soon as it has appealed the DCA’s “Kölsch” beer cartel judgment and two undertakings have appealed the FCO’s stainless steel cartel decision.

The Stainless Steel Cartel

In July 2021, the FCO concluded its long-lasting investigation into the stainless steel cartel and imposed fines against the last members of the cartel.[2]  After it had already imposed fines of around € 205 million in July 2018,[3] the fines against members of the stainless steel cartel now total € 355 million.

The investigation was initiated following a leniency application by “voestalpine AG” which led to industry-wide dawn raids in November 2015.  The cartel members fixed price surcharges and exchanged sensitive information in relation to long stainless steel which forms the basis for high-quality steel products used for high-quality constructions, tools, industrial applications, and in the automotive sector.  In Germany, long stainless steel products are usually sold subject to a pricing model that essentially consisted of a base price and scrap and alloy surcharges.  These surcharges could account for a considerable part of the final price.  The cartel members coordinated the calculation method for the scrap and alloy surcharges.  The coordination occurred through two industry associations which collected, processed and supplied necessary data to coordinate surcharge prices.

While the fines against eight stainless steel undertakings, two industry associations and 17 individuals are final, two undertakings have appealed the FCO’s decision to the DCA.

The “Kölsch” Beer Cartel Saga

On September 8, 2021, the Düsseldorf Court of Appeals (“DCA”) annulled the FCO’s cartel fines of € eight million imposed on three Cologne-based “Kölsch” breweries and two managers, ruling that the FCO relied on insufficient evidence.[4]

In 2014, the FCO imposed a fine totaling € 338 million on several breweries, the North Rhine-Westphalian brewers association (“NRWBA”) as well as their respective managers for price fixing at meetings of the NRWBA and trade fairs in 2006 and 2007.[5]

Before the DCA, the main question was whether the FCO had sufficiently proven that the three companies had fixed prices during an NRWBA meeting in September 2007.  Only two of 14 witnesses were able to even recall such an agreement.  However, the DCA found their memories too vague and not sufficiently founded to support the FCO’s finding of a price-fixing agreement.  In addition, the DCA could not confirm that one of the alleged participants was actually present at the committee meeting.  The DCA therefore annulled in their entirety the fines against these three companies and the two managers.

The DCA’s judgment is a novelty in that the breweries were acquitted entirely.  However, the saga is not yet over: the FCO has appealed the judgment to the Federal Court of Justice, which will have its final say on the required standard of proof.

Editor: Katharina Apel

[1]              Case B12-22/17.  The FCO’s Press Release is available in German here and in English here.  A case summary is only available in German here.

[2]              Cases B12-22/15 and B12-21/17.  A case summary is only available in German here.

[3]              The FCO’s Press Release is available in German here and in English here.  .

[4]              V-4 Kart 4/16 OWi.  The DCA’s Press Release of September 8, 2021 is only available in German here.

[5]              B10-105/11.  The FCO’s Case Summary is only available in German here.