Germany: The Obligation To Pay Interests On Cartel Fines Does Not Breach The German Constitution, Says The German Federal Constitutional Court

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 ("Grundgesetz").

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 in 2005.

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 payment.

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 discouraging appeals.

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 equally.

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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