The German Bundesgerichtshof ("BGH") rendered a judgment in a case on the internal allocation within an undertaking of a jointly and severally imposed competition fine. [The judgment is not yet published; this report is based on the BGH press office's summary report].
The background to the case is the Calcium Carbide cartel decision by the European Commission in which it imposed a joint and several fine on several legal entities within one corporate group. The ultimate parent company, having paid a part of the fine, sued its (former) group companies for contribution.
It argued that in the internal relation between claimant and the former group companies, the latter were responsible for the payment since the claimant itself had not actively participated in the infringement.
The lower and higher courts dismissed the claimant's arguments. The Higher Court held that the claimant, being the ultimate parent company, is responsible for payment of the entire amount of the fine and could not claim contribution, since the benefits of participating in the cartel would have ultimately reached the claimant. The Higher Court added that this reasoning applies, irrespective of whether the cartel did in fact lead to financial benefits.
The BGH rendered its judgment on 18 November 2014. It referred to European case-law in which it was established that the question of internal contribution is governed by national law, and considered that for German law the relevant criterion is to be found in para. 426 German civil code ("BGB"). Para. 426 BGB stipulates that joint and several debtors are obliged in equal proportions in relation to one another unless otherwise determined. The BGH concluded that the Higher Court's judgment must be annulled. Rather, the Higher Court should have considered all relevant circumstances of the case to determine the internal allocation. The contribution claim of the ultimate parent company might be barred if it is established that there is an agreement in place under which the group companies must disgorge profits to the parent company (a "Gewinnabführungsvertrag").
The BGH referred the case back to the Higher Regional Court for determining those circumstances relevant for the case.