Sausage gap
A sausage loophole is a liability loophole (loophole) in German antitrust law that was closed in 2017 , in which corporations were able to avoid fines imposed in antitrust proceedings by dissolving the respective subsidiaries through restructuring . The term Wurstlücke was coined with reference to the restructuring of the Tönnies Group as a participant in the Wurstkartell . By dissolving its two subsidiaries Böklunder Plumrose and Könecke Fleischwarenfabrik as part of the Zur Mühlen Group, the Tönnies Group was able to avoid fines amounting to 128 million euros.
Background: the sausage cartel
The Federal Cartel Office had imposed on participants in the cartel sausage on July 15, 2014 fines totaling about 338 million euros. Fines were imposed on 21 sausage manufacturers and 31 responsible persons, including the Böklunder Plumrose and the Könecke meat products factory belonging to the Zur-Mühlen Group of the Tönnies Group. Their essential assets were then withdrawn by transferring them to other group companies and they were deleted from the commercial register. Due to the current version of the Act against Restraints of Competition (GWB), the proceedings had to be discontinued without a fine . By June 2017 , fines totaling a further 110 million euros had to be lifted against three other companies in the sausage cartel, Bell Germany , Sickendiek ( Reinert Group) and Marten , after they had exploited the sausage gap through restructuring.
Closing the loophole by the legislature
To close this gap, the Federal Ministry of Economics published a draft bill on July 1, 2016 , which was intended to introduce group liability for breaches by subsidiaries. With the 9th amendment of the Act against Restraints of Competition (GWB) , together with the implementation of the Antitrust Damage Directive on June 1, 2017, corporate liability was introduced. The newly inserted paragraphs 3a to e in Section 81 GWB read:
"§ 81 Fine regulations
[...]
(3a) Has someone as a manager within the meaning of § 30 Paragraph 1 Numbers 1 to 5 of the Law on Administrative Offenses committed an administrative offense according to Paragraphs 1 to 3, through the obligations that affect the company, has been violated or if the company has been or should be enriched, further legal persons or associations of persons who formed the company at the time the offense was committed and which refer to the legal person or association of persons whose manager committed the offense directly or have indirectly exercised a determining influence, a fine may be imposed.
(3b) In the case of universal succession or partial universal succession by splitting up ( Section 123 (1) of the Transformation Act ), the fine under paragraph 3a can also be imposed on the legal successor (s). In fine proceedings, the legal successor or legal successors take the position in which the legal predecessor was at the time the legal successor took effect. Section 30 (2a) sentence 2 of the Administrative Offenses Act does not apply in this respect. Sentence 3 also applies to the legal succession according to Section 30 (2a) sentence 1 of the Administrative Offenses Act, provided that it is based on an administrative offense under Section 81 (1 to 3).
(3c) The fine in accordance with Section 30 (1) and (2) of the Administrative Offenses Act and in accordance with (3a) can also be imposed on legal entities or associations of persons who continue to run the company (economic succession). Paragraph 3b sentence 2 applies accordingly to the procedure.
(3d) In the cases of paragraphs 3a, 3b and 3c, the maximum amount of the fine and the statute of limitations are determined by the law applicable to the regulatory offense. The fine under paragraph 3a can be set independently.
(3e) If, in the cases of paragraphs 3a, 3b and 3c, fines are imposed on several legal persons or associations of persons for the same administrative offense, the provisions on joint and several debt shall apply accordingly. "
Individual evidence
- ↑ Armin Jungbluth: The 9th Amendment to the GWB - Digitization, Closing the Sausage Gap, Cartel Damage Compensation and More ... In: New Journal for Cartel Law . tape 5 , no. 6 , 2017, p. 257 ff . , ZDB ID 2687078-2
- ↑ Wurstkartell: Cartel Office gives up, Tönnies is off the hook. In: juve.de. October 19, 2016, accessed July 10, 2017 .
- ↑ Bundeskartellamt : Proceedings against companies of the ClemensTönnies Group discontinued - fines of EUR 128 million are no longer applicable as a result of restructuring . Press release from October 19, 2016
- ↑ SPIEGEL ONLINE : Cartel punishment avoided: sausage manufacturers slip through "Wurstlücke" again - SPIEGEL ONLINE - Economy. June 26, 2017. Retrieved August 1, 2017 .
- ↑ Referent draft of the Federal Ministry for Economic Affairs and Energy: Draft of a ninth law to amend the law against restraints of competition (9th GWB-AmendmentG) , dated July 1, 2016.
- ↑ Ulrike Suchsland and Nadine Rossmann: "With a net and a double bottom" - liability for fines according to the draft of the 9th GWB amendment . In: New magazine for competition law . tape 4 , no. 8 , 2016, p. 342 ff . , ZDB ID 2687078-2
- ↑ a b BGBl. I 2017, page 1416.
