On July 9, 2019, the Supreme Court (here) quashed the decision of the Higher Regional Court of Düsseldorf, which had increased the fine for retailer Rossmann from EUR 5.25 million to EUR 30 million on the basis of vertical price agreements in the sale of roasted coffee, and referred it back for a new decision. A formal error caused the annulment and referral: The grounds of the Higher Regional Court Düsseldorf’s judgement were not placed on file in due time after the judgement had been delivered at the end of the main oral hearing.
The Supreme Court only marginally commented on issues of substance as the formal error is a so-called absolute ground for appeal, which results in the judgement being set aside in its entirety. Rossmann had argued that the limitation period for the cartel infringement had already expired. The Supreme Court confirmed the Court of Appeal’s finding that there had been a single and continuous cartel infringement, consisting of a basic agreement and acts of implementation. According to the findings of the Higher Regional Court of Düsseldorf, the infringement had not yet ended by February 2008. The decision of the Higher Regional Court of Düsseldorf of February 28, 2018 had therefore interrupted the (10 years) statute of limitations in due time.
However, the Supreme Court did not comment on the calculation of the fine by the Higher Regional Court of Düsseldorf that had led to a six-times higher fine than the fine originally imposed by the Federal Cartel Office.
In 2016, the German Federal Cartel Office found that roasted coffee manufacturer Melitta and several retailers had entered into vertical price agreements between 2004 and 2008 to maintain a minimum level of retail prices for roasted coffee products, and had imposed fines of EUR 5.25 million on Rossmann (see the case summary in German here )
While all other parties settled the proceedings with the Federal Cartel Office, Rossmann appealed the fine.
In 2018, the Higher Regional Court of Düsseldorf increased the fine against Rossmann to EUR 30 million (Case No. 4 Kart 3/17 OWi, here ). In calculating the fine, the court took the group-wide turnover as the basis instead of the turnover involved in the infringement, which the Federal Cartel Office is using for the calculation, and assessed the severity of the act and the guilt level. Rossmann then appealed to the Supreme Court.
