In 2009, the Bundeskartellamt (FCO) imposed fines of approx. 159.5 million euros on three coffee roasters – Tchibo GmbH, Hamburg, Melitta Kaffee GmbH, Bremen, and Alois Dallmayr Kaffee oHG, Munich – and on six employees for price fixing. The FCO found that in the period between early 2000 and mid 2008 the coffee roasters had put in place a discussion group, consisting of directors and sales managers from each of the coffee roasters. The purpose of the discussion group was to fix prices (agree on price increases). This conduct had a direct detrimental effect on end consumers.
Melitta Kaffee appealed the decision of the FCO and, in the meantime, merged with one of its affiliates to form a new company, Melitta Europa GmbH & Co. KG. The FCO assumed that the reorganization was carried out with the aim of avoiding liability for payment of the fines.
In a landmark decision issued on 10 February 2014, the Düsseldorf Higher Regional Court imposed a 55 million euro fine on Melitta Europa, confirming the amount of fine that the FCO had imposed on Melitta Kaffee. The main question that the Düsseldorf Higher Regional Court had to decide was if Melitta Europa was liable to pay the fine following the restructuring of the Melitta group. The Düsseldorf Court held that, looking at it economically, Melitta Europa, as Melitta Kaffee’s legal successor such that it was liable to pay the fine imposed on Melitta Kaffee. The decision of the Düsseldorf Higher Regional Court has been appealed to the German Federal Court of Justice.
Irrespective of the outcome of the Melitta appeal, the 8th amendment of the German competition law (which came into force in 2013) provides that a legal successor can be liable for infringements by its predecessor, up to the value of the assets that the successor acquired from the predecessor (even if the legal successor does not economically step into the shoes of its predecessor). As a result, the 8th amendment extends the liability of successor entities for fines of their predecessors beyond the pre-amendment position reflected in the Melitta judgment.