In a recently published decision dated 16 December 2014, the German Federal Court of Justice (Bundesgerichtshof or BGH) ruled that the fines imposed on Maxit Deutschland GmbH by the German Federal Cartel Offices (Bundeskartellamt or FCO) in 2009 are not enforceable against its legal successor, St. Gobain Weber GmbH.
After being fined around 12 million euros for having participated in anti-competitive agreements on set-up fees in 2009, Maxit Deutschland GmbH was taken over by St. Gobain Weber GmbH, which had also been part of the cartel agreements under investigation. According to the law applicable at the time, imposing fines against the legal successor was only possible in cases where the assets of the merged company and its legal successor were "essentially identical". Due to the restructuring measures, Maxit Deutschland GmbH underwent when being taken over by St. Gobain Weber GmbH, the Federal Court of Justice decided that this criterion was not fulfilled in the present case. Also in consideration of the relevant European provisions on legal succession, the assets in question could not be regarded as essentially identical.
Although the German Legislator by now has made various amendments to close what appears to be a loophole from the FCO’s point of view, there remain several unsolved legal issues between restructuring and liability for competition law infringements of former legal entities, in which specific restructuring measures may have quite a similar effect for the legal successor as in the abovementioned case. Also, there are further pending proceedings in which the former law still has to be applied and which will be significantly influenced by this decision of the Federal Court of Justice and the legal framework it provides for the parties to the proceedings.