The Cartel Court (KG) rejected the application for correction for one point and dismissed it for the other points. The company’s appeal related to this decision.
The Supreme Cartel Court (KOG) decided on 11 May 2023 to reject the appeal. The Supreme Cartel Court confirmed the Cartel Court’s decision in essence, stating that there was no legitimate interest to take legal action in relation to one point and no correctable mistake within the meaning of § 419 of the Code of Civil Procedure (ZPO) in relation to the remaining points.
More specifically, the KOG confirmed that no legitimate interest to take legal action existed in relation to a correction of the presentation of the AFCA’s submission on the scope of the overall infringement to include Germany, in particular because no finding had been made. The KOG also did not consider “the mere presentation of the applicant’s [AFCA’s] submission on the scope of the overall infringement to include also German construction projects” to be an obvious inaccuracy within the meaning of § 419 ZPO.
The KOG judges neither the KG’s presentation of the submission regarding the involvement of the company in question nor the resulting finding that the company in question had been involved “to a significant extent” in the overall infringement as being an obvious inaccuracy within the meaning of § 419 ZPO.
In view of the undisputed facts, the KOG considers the KG’s assumption that the company involved benefited from the competition infringements as prima facie unobjectionable. At the same time, the KOG notes that the question of whether this conclusion was indeed legitimate is not to be clarified in a procedure to correct obvious inaccuracies.