The Bundeskartellamt (“BKartA”)has for the first time referred an ongoing cartel investigation to the European Commission within the framework of the network of European Competition Authorities (“ECN”) on April 27, 2018 (see here). The BKartA had inspected several metal packaging manufacturers in Germany in March 2015 following an anonymous tip-off, and has since then pursued national proceedings. It is an unusual step to refer a case after such a long duration of proceedings at national level. Typically, the case allocation within the ECN takes place at the beginning of an investigation. The BKartA gave the following reasons: (i) increasing evidence that the cartel was not limited to Germany but also concerned other EU Member States, and (ii) that several companies subject to the proceedings undertook internal restructuring prior to the new legal regime that took effect in mid-2017. To these restructuring measures the former legal rules would still apply, which might render sanctioning these companies impossible. This point refers to the so-called sausage gap in German competition law, which made fining of legal successors difficult or sometimes impossible. The new law provides for group liability and full liability of the “economic” successor of a cartel participant (i.e. not limited to the value of the cartel participant’s assets). Interestingly, the BKartA now seems to confirm that the contingent liability rules aimed at covering the interim period between old and new law would not apply to restructuring measures carried out prior to mid-2017 when the new law took effect. In light of this, the BKartA has indeed followed its announcement to refer sausage-gap-like scenario cases to Brussels. Silke Heinz is quoted on this step in the Global Competition Review, (see here).
Bundeskartellamt refers metal packaging cartel case to European Commission to avoid another sausage-gap-like scenario
by Silke Heinz