• Germany: the Düsseldorf Higher Regional Court Increases Fines

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• Germany: The Düsseldorf Higher Regional Court increases Fines against Liquefied Petroleum Gas Cartel On 16 April 2013, the Düsseldorf Higher Regional Court - the Oberlandesgericht Düsseldorf (the Court) has imposed fines of € 244 000 000 on five members of the liquefied petroleum gas (LPG) cartel or their successors. The companies concerned are Friedrich Scharr KG; Primagas GmbH, Krefeld, now Salzgitter Gas GmbH; Progas GmbH & Co. KG, Dortmund; Sano-Propan GmbH, Nuremberg and Tyczka Totalgaz GmbH, Geretsried. The Court has raised the total amount of fines to a level higher than that imposed by the Bundeskartellamt (BKartA) on the companies concerned. In 2007, the BKartA had issued orders imposing fines totalling approximately € 180 000 000 on the five cartel participants. In its judgment, the Court confirmed that from July 1997 to April 2005 the companies concerned operated a system of customer protection agreements related to their sales of LPG for standard tanks of up to 2.9 T in order to eliminate competition between one another. Tanks of this type are used mainly by smaller commercial and household customers. Assisted by a system of so-called ‘notification of competition’ run by a logistics company - jointly operated by Transgas Flüssiggas Transport und Logistik GmbH & Co. KG - on which a fine was also imposed, the companies concerned agreed not to poach customers from one another. Customers wishing to switch supplier were either not quoted a price, or if so, only an excessive ‘deterrent price’. The decision of the Court to increase the amount of the fines is based on the duration of the agreement and the severity of the infringement. The Court’s judgment is not yet final. The companies can appeal on points of law to the Federal Court of Justice. Separate proceedings have been conducted against the successor of another member of the cartel, Tyczka Energie GmbH, now Tyczka Gase GmbH. According to recent case law of the Federal Court of Justice, this company may be acquitted even if it is proved that it was involved in the cartel, because it has in the meantime been legally restructured. Furthermore separate proceedings have been initiated against the companies Drachen-Propangas GmbH, Propan Rheingas GmbH & Co. KG and Westfalen AG for their involvement in the above mentioned agreements. The Court will rule on their participation in separate proceedings. 33.

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