The Federal Court of Justice recently addressed the issue of responsibility for a cartel fine imposed on several companies. According to the court, in order to establish internal liability it must first be assessed whether there is a contractual arrangement which stipulates the rules of compensation. The court went on to specify the criteria relevant to the proportion of internal compensation between joint and several debtors.
Gun jumping and other violations of the obligation to suspend a transaction prior to clearance can be costly in Germany. Foreign-to-foreign mergers are subject to German merger control if they have a 'domestic effect' – a term that is interpreted widely by the Federal Cartel Office (FCO). The FCO has repeatedly made clear that it will enforce this obligation, and has imposed fines on a number of occasions.
The Federal Cartel Office (FCO) has fined US company Mars Inc €4.5 million for closing a deal to acquire US pet food producer Nutro Products without awaiting FCO approval of the transaction. The decision is a signal that the FCO is determined to enforce compliance with the suspension obligation in merger cases by imposing considerable fines.