In a decision of 19 December 2012, the German Federal
Constitutional Court (the "Constitutional Court")
confirmed that the obligation to pay interests on fines imposed on
a company by a decision of a cartel authority, as laid down in the
German Act Against Restraints of Competition ("GWB"), is
compatible with the Basic Law of the Federal Republic of Germany
The question was referred to the Constitutional Court by the
Higher Regional Court of Düsseldorf, in the context of an
appeal against an order of the German Federal Cartel Office
("FCO") to pay interests on a cartel fine. The appeal was
lodged by a company that had been fined in 2005 by the FCO for
anti-competitive conduct. The company had challenged the FCO
decision before an appeal court but withdrew its action in 2009
shortly before the court pronounced its judgment. The FCO then
ordered the company to pay interests on the fine imposed by the FCO
While companies can withhold payment of penalties to the FCO
until the courts have taken a final decision on any appeals,
pursuant to Section 81(6) GWB, "interest is payable on
fines imposed on legal persons and associations of persons in an
order imposing an administrative fine; fines bear interest as of
two weeks after service of the order imposing an administrative
fine". The above provision was introduced in the GWB in
2005 in order to stop companies from filing appeals solely to defer
The company concerned claimed that this new provision infringed
its right to equal treatment laid down in Article 3(1) Grundgesetz,
because Section 81(6) GWB only applies to legal persons, not to
individuals. Moreover, the obligation to pay interests on fines
exists only in German competition law, not in other areas of German
law. In addition, the company claimed that it infringes the
guarantee of judicial review as the provision is aimed at
The Constitutional Court rejected all claims. It considered that
the application of the provision to legal persons only is justified
as the risk for appeals being filed only to defer payments for
securing financial benefits is higher in the case of legal persons,
as the amount of fines imposed on individuals is, as a general
rule, considerably lower. Moreover, the Court stated that
administrative offences in competition law constitute a special
case. Since they are different from administrative offences in
other areas of law, these situations do not need to be treated
Further, according to the Constitutional Court, the guarantee of
judicial review is not infringed because the obligation to pay
interests only applies to fines imposed by the FCO. In case an
appeal is not withdrawn and the appeal court hands down a decision,
the latter decision replaces the FCO decision even if it upholds it
in substance, and interests are due as from the court decision
only. Thus, interests on fines imposed by the FCO are only due if
the appeal is withdrawn before the court decision comes down.
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guide to the subject matter. Specialist advice should be sought
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