Germany: Düsseldorf Regional Labour Court Rejects Thyssenkrupp's Attempt To Recoup Cartel Fine From Former Manager

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 infringement.

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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