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Düsseldorf Higher Regional Court confirms fines against Melitta

Date of issue: 11.02.2014

Yesterday the Düsseldorf Higher Regional Court imposed a fine of 55 million euros on Melitta Europa GmbH & Co. KG, confirming the Bundeskartellamt's fines decision of 21 December 2009 (see Press release of Bundeskartellamt of 21 December 2009). The main focus of the proceedings was not so much the accusation itself as the question of whether Melitta was liable to pay the fine because since then restructuring measures have been carried out within the company group.

Andreas Mundt, President of the Bundeskartellamt: "We very much welcome this ruling. The cartel accusation as such was hardly an issue in this case. The court has decided that the company could not escape liability for the cartel violation by carrying out reorganisation measures. Melitta is not the first company to try and make use of existing loopholes in the law and it will not be the last. Previous amendments to the law are still inadequate. The legislator still needs to provide clarity in this area."

In 2009 the Bundeskartellamt had imposed fines totalling 159.5 million euros on Alois Dallmayr Kaffee oHG, Melitta Kaffee GmbH and Tchibo GmbH. Kraft Foods Deutschland GmbH was not fined because it was the first to apply for leniency.

Alois Dallmayr Kaffee oHG had accepted its fine (so-called settlement) but Melitta Kaffee GmbH and Tchibo GmbH had appealed against theirs. Whereas Tchibo GmbH withdrew its appeal in August 2013, the partners of Melitta Kaffee GmbH had merged their company into one of its affiliates, Melitta Europa GmbH & Co. KG by way of universal succession. The Bundeskartellamt assumes that this reorganisation was carried out with the aim of avoiding liability for payment of the fines.

Only with the 8th amendment to the Act Against Restraints of Competition (GWB) in 2013 was a regulation introduced on the liability of a legal successor to pay a fine. This has at least made measures to avoid liability more difficult since then. The restructuring measures in Melitta's case were taken prior to this amendment.

The Düsseldorf Higher Regional Court has now decided that Melitta Europa GmbH & Co. KG as the legal successor of Melitta Kaffee GmbH is liable for the fines imposed on the latter because from an economic perspective Melitta Kaffee GmbH and Melitta Europa GmbH & Co. KG can assumed to be identical.

In addition the Higher Regional Court confirmed the accusation that the four coffee roasters involved had agreed among themselves on the level, extent, date of announcement and implementation of the planned price increases from at least early 2000 until the companies were searched in July 2008. This applied in particular to five price increases during 2003 and 2008, at least four of which had been implemented. In the court's view the aim had been to maintain the “price architecture” of the companies’ final sales prices and special offer prices for their major roasted coffee products (filter coffee, at times also whole bean products, espresso and coffee pads).

The Regional Higher Court's decision is not yet final. Melitta Europa GmbH & Co. KG has appealed against the decision to the Federal Court of Justice on points of law.

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