Yesterday the Düsseldorf Higher Regional Court imposed fines of 244 million euros on five members of the liquefied gas cartel or their successor companies (ref. VI-4 Kart 2-6/10 OWi). The companies involved are Friedrich Scharr KG, Stuttgart; Primagas GmbH, Krefeld, now: Salzgitter Gas GmbH; Progas GmbH & Co. KG, Dortmund; Sano-Propan GmbH, Nuremberg; Tyczka Totalgaz GmbH, Geretsried.

The Higher Regional Court has raised the total amount of fines to a level higher than that imposed by the Bundeskartellamt on the companies concerned. In 2007 the Bundeskartellamt had issued orders imposing fines totalling approx. 180 million euros on the five companies or their predecessors (cf. Bundeskartellamt press releases of 19 December 2007 and 15 April 2009).

Andreas Mundt, President of the Bundeskartellamt: "The court ruling sends a clear signal that cartel offences will be punished with heavy fines. The Higher Regional Court has gained additional insights from the main hearing for assessing the duration and gravity of the offences and in the case of some companies has even imposed fines which exceed our own. Together with the decision of the Federal Court of Justice in the cement cartel case published last week we have shortly after one another two landmark decisions for cartel prosecution which we very much welcome."

The Higher Regional Court confirmed the accusation that from July 1997 to April 2005 the companies concerned operated a system of customer protection agreements in their sales of liquefied petroleum gas for standard tanks of up to 2.9 t, in order to eliminate competition between one another. Tanks of this type are used mainly by smaller commercial and household customers. Aided by a system of notification of competition run by a jointly operated logistics company, Transgas Flüssiggas Transport und Logistik GmbH & Co. KG, on which a fine was also imposed, the companies agreed not to poach customers from one another. Customers wishing to switch supplier were either not quoted a price, or if so, only an excessive “deterrent price”.

The Regional Higher Court's decision is not yet final. The companies can appeal against this decision on points of law to the Federal Court of Justice.

Separate proceedings were conducted against the successor company of another member of the cartel, Tyczka Energie GmbH, now: Tyczka Gase GmbH. According to a more recent decision of the Federal Court of Justice, this company may be acquitted even if it is proved that it was involved in the cartel because it has meanwhile been legally restructured.

Before the main hearing began, separate proceedings were initiated against the companies Drachen-Propangas GmbH, Propan Rheingas GmbH & Co. KG and Westfalen AG which the Bundeskartellamt had accused of involvement in the agreements. The Higher Regional Court is to clarify their involvement in separate proceedings.

Link to Press Release of the Düsseldorf Higher Regional Court.