Today the final scene of the tragedy featuring three Kölsch breweries against the German Federal Cartel Office was played. But just like in nearly every good play, David has won against Goliath. The big loser is the German competition regulator, which has now also lost in the last instance before the German Federal Court of Justice (BGH). The BGH has today “rejected as unfounded” the appeal against a sentence from 2021.
In 2014, the Federal Cartel Office imposed fines of more than EUR 8 million on the Kölsch breweries Früh, Gaffel and Erzquell and two of their managers for alleged price fixing during a regional association meeting of breweries in September 2007
The breweries appealed against this decision. Nothing happened for five years before the case was reopened in 2019.
In 2021, the 4th cartel senate was unable to find any usable indications of the alleged beer price agreements between the regional breweries. It was said at the time that only two of the 14 witnesses remembered them anyway.
According to a court spokesman, "the memory of one witness was too vague to support a conviction for illegal conduct." According to the Senate, the testimony of the other witness was “chaotic, characterized by bizarre mix-ups and in part wrong”, so that the witness later corrected his statements. In the case of one of those affected, it could not even be determined that he had even attended the committee meeting.
After 34 days of main hearings with numerous witness hearings, the regional court in Düsseldorf acquitted the brewers of the alleged misconduct. A suspected cartel could not be proven. The fines imposed by the Cartel Office did not have to be paid. (inside.beer, 8.9.2021)
Now, after one and a half years of examination, the Federal Court of Justice has also confirmed this acquittal. It is probably the first time that the German Federal Court of Justice has confirmed such an acquittal after antitrust proceedings.
