OLG Düsseldorf imposes large fine in response to vertical price fixing

The Oberlandesgericht (OLG) D?sseldorf, the Higher Regional Court of D?sseldorf, has imposed a fine of 30 million euros on a drugstore chain and in doing so significantly increased the fine set by the Bundeskartellamt, Germany"s Federal Cartel Office.

Price-fixing agreements are normally in breach of antitrust law. These types of arrangements are not only illegal in the context of horizontal relationships between competitors but also with respect to vertical relationships between producers and distributors. We at the commercial law firm GRP Rainer Rechtsanw?lte note that price-fixing arrangements of this kind restrict competition and thus violate the Gesetz gegen Wettbewerbsbeschr?nkungen (GWB), Germany"s Act Against Restraints of Competition.

In the instant case, the Bundeskartellamt had already imposed a fine of around five million euros on the drugstore chain as early as December of 2015 due to vertical price-fixing arrangements in relation to the distribution of roast coffee. These investigations were part of a larger series of proceedings dealing with vertical price-fixing agreements between a coffee roaster and various retailers, including the drugstore chain in question. On 1 March 2018, the Bundeskartellamt announced that the OLG D?sseldorf had increased the fine to 30 million euros (Az.: V-4 Kart 3/17 OWi).

The OLG D?sseldorf found that there was sufficient evidence indicating that between 2005 and 2008 the drugstore chain had been party to relevant the price control system, pursuant to which the businesses were said to have agreed on supply prices in particular. Consequently, the producer was protected from price abuses on the part of the drugstore, which in turn received information regarding its competitors" pricing behaviour. The Court concluded that these vertical price-fixing arrangements ultimately also had horizontal implications at the national level for the sale of an important commodity such as coffee.

The OLG D?sseldorf"s ruling is not yet final. The drugstore chain already announced on 12 March 2018 that it had filed an appeal on a point of law with the Bundesgerichtshof, Germany"s Federal Supreme Court, and that it cannot fathom the allegations of illegal price fixing.

Violations of antitrust law or competition law can be met with severe penalties. However, violations are by no means always as obvious as in the case of illegal price-fixing arrangements. Even seemingly insignificant contractual clauses can give rise to a violation and lead to certain consequences. Lawyers who are experienced in the fields of antitrust law and competition law can offer businesses advice.

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