Beer cartel
GWB § 1, § 81 Paragraph 1 No. 1, Paragraph 2 No. 1; TFEU Art. 101 Para. 1; EGV Art. 81 Para. 1; GG Art. 1 Paragraph 1, Art. 20 Paragraph 3; HRC Art. 6 Para. 2; OWiG Section 31 Paragraph 1 Clause 1, Paragraph 3
a) The act of concerted conduct is twofold; In addition to a coordination process (contact), it requires an actual behavior in the sense of practical cooperation on the market, that is, a concrete market behavior in the implementation of the coordination. A typical means of prohibited voting is the exchange of information on parameters relevant to competition with the aim of eliminating the uncertainty about the future market behavior of the competitor.
b) In the civil and administrative cartel proceedings, an actual presumption suggests that coordination through the exchange of information influences the market behavior of the companies involved. This assumption is based on the empirical principle that a company regularly takes knowledge of the intended or considered market behavior of a competitor into account when determining its own market behavior.
c) The - potentially strong - indicative effect of this empirical set must also be taken into account when assessing evidence in cartel fine proceedings. If the trial court is unable to convince itself of a causal connection between the vote and market behavior, the assessment of the evidence will generally prove to be incomplete and therefore incorrect in law if the empirical principle is not discussed in the reasons for the judgment.
d) The fact of the coordinated behavior summarizes the coordination process and the behavior based on it in the sense of a practical cooperation on the market to a valuation unit as a sub-case of the actual action unit. As long as the market behavior continues, the act is not ended within the meaning of Section 31 (3) OWiG.
BGH, decision of July 13, 2020 - KRB 99/19 - OLG Düsseldorf
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