On 20 January 2015, the Regional Labour Court of Düsseldorf
upheld the judgment of the Labour Court of Essen insofar as it
rejected the damages claims in the amount of € 191
million brought by a subsidiary of the ThyssenKrupp group
("ThyssenKrupp") against one of its former managers in an
attempt to recoup cartel fines imposed on the company for its
participation in the rail track cartel in Germany.
In 2012 and 2013, the German Federal Cartel Office
("FCO") had imposed a total fine of € 191
million on ThyssenKrupp for its participation in a cartel on the
market for the sale of rail tracks and rail equipment. The company
subsequently sued a former member of its management before the
labour courts, arguing that the manager actively contributed to the
cartel that led to the imposition of the fines or was, at least,
aware of the cartel. According to ThyssenKrupp, the manager had the
obligation to inform the board of the group or the compliance
department about the cartel, which he failed to do. ThyssenKrupp
also argued that the manager caused the damage by neglecting his
supervisory duties. Therefore, according to ThyssenKrupp, the
manager was liable for all damages resulting from the cartel.
The Regional Labour Court of Düsseldorf (the
"Court") acknowledged that, generally speaking, under
German company law, a managing director is liable vis-à-vis
its company for all damages resulting from an infringement of a
duty incumbent on him, such as the obligation to comply with all
legal provisions relevant to the company, including competition
law. The Court, however, excluded the liability of a company
representative for cartel fines that were imposed on the company
due to a violation of competition law. The Court stressed that the
legislator implemented a system of fines which differentiates
between fines against companies and fines against natural persons.
In particular, a fine against a company can amount to 10% of the
group's annual turnover, whereas a fine against a natural
person cannot exceed € 1 million. This differentiation
would be obsolete if a fine imposed on a company could be passed on
to a natural person.
Furthermore, the sanctioning effect and general deterrence of
competition law would be undermined should a company be able to
escape its liability under competition law by recouping its cartel
fine through a damages claim against a company representative.
According to the Court, a competition law fine must remain with the
company to which it is addressed in order to influence its future
behaviour. This is supported by the finding that, pursuant to EU as
well as German competition law, cartel fines can serve to offset
the economic advantage that the company gained with the
ThyssenKrupp brought an additional claim which was aimed at
holding its former manager liable for any damage linked to its
alleged anti-competitive behaviour, exceeding the cartel fine. It
claimed a further € 100 million which corresponded to the
amount ThyssenKrupp agreed to pay to Deutsche Bahn, a third party
injured by the cartel. The Court suspended the proceedings in this
respect in view of the fact that the criminal action brought by the
Criminal Prosecutor against the managing director has not yet been
decided by the Criminal Court.
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