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EU Cartel-Fine Practice to Be Reviewed by German Court

Germany’s top constitutional court is reviewing a complaint about the European Union’s cartel prosecution practice, according to a list of pending cases released yesterday.

A company fined by the European Commission for antitrust violations asked the court to review the decision to punish it as well as rulings by the European Court of Justice on the issue. The company’s name wasn’t disclosed.

German companies fined by the EU’s antitrust regulator have long argued the punishments are excessive and the appeal process before the European courts lacks the fairness and defense rights afforded by national courts.

The case may reopen a dispute between Germany’s Federal Constitutional Court and the ECJ over who has the last word in such matters. As a rule, the German court can’t review EU authorities’ actions. Agreeing to hear the cartel fine case indicates the German court will take another look at the issue.

Germany’s top judges ruled in 1974 that as long as the EU’s court system doesn’t adequately protect constitutional rights, they can intervene. In 1986, the judges held the EU had since implemented adequate legal protections and as long as they are effective, the German court wouldn’t interfere.

The German constitutional court complaint was filed in 2011. That year ThyssenKrupp AG won an appeal before the EU’s General Court, taking 159.9 million euros ($211.9 million) off a 479.7 million-euro antitrust fine for carving up the markets for elevators and escalators. The Luxembourg-based court ruling upheld fines against United Technologies Corp.’s Otis unit, Finland’s Kone Oyj and Schindler Holding AG.

The German case is BVerfG, 2 BvR 2752/11.

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