Early this month, the German Federal Supreme Court (BGH) published its judgment in the appeal filed by Melitta Europa GmbH & Co. (Melitta Europa) against the 2014 judgment of the Düsseldorf Higher Regional Court (OLG). The OLG confirmed a 55 million euro fine imposed in 2009 by the German Federal Cartel Office on Melitta Kaffee, finding that, economically, Melitta Europa was Melitta Kaffee’s legal successor and, as such, was liable to pay the fine.
The BGH affirmed the OLG’s ruling, finding that Melitta Europa had taken over all of Melitta Kaffee’s assets and continued to operate Melitta Kaffee’s coffee business from the same locations, under the same management and with the same staff. Further, it found that Melitta Europa achieves more than half of its sales and most of its profits from the predecessor’s coffee business, and Melitta Kaffee’s assets represent a significant part of Melitta Europa’s business. Given this, the BGH concluded that Melitta Europa was the economic successor to Melitta Kaffee.
The BGH’s guidance regarding the treatment of successor liability in case of restructuring has been overtaken by legislation. The 8th Amendment to the Act against Restraints of Competition, which came into force on 30 June 2013, closed the loopholes in the old legislation that allowed undertakings to circumvent cartel fines through corporate restructuring.