Clemens Tönnies fined for incomplete notification of a merger

The Bundeskartellamt has imposed a fine of 90,000 euros on Mr Clemens Tönnies (senior) for the incomplete notification of the acquisition of the slaughtering company Tummel, Schöppingen, by his company group. The notification did not contain information about Mr Tönnies' majority share in the zur Mühlen group, a major sausage manufacturer, which was essential for the competitive assessment of the case.

Andreas Mundt, President of the Bundeskartellamt: "The Bundeskartellamt cannot accept any notification which contains incorrect or incomplete information. In the case of time-limited merger control proceedings, it is absolutely essential that a notification is correct and complete for us to be able to establish right from the start of the examination period what investigations are necessary and what entrepreneurial resources the notifying parties have in the markets affected. Otherwise there is the risk that the Bundeskartellamt could take a decision which is based on false information. The law rightly prescribes heavy fines for any such misconduct."

In March 2011 Tönnies Holding, controlled by Clemens Tönnies, notified plans to acquire a majority share in Tummel, which is mainly active in the slaughtering of sows. In order to enable the Bundeskartellamt to judge which markets will be affected by a merger, the German Act against Restraints of Competition stipulates that the parties to a merger give details in the notification of all affiliated companies and their activities. This duty also applies to the companies or shareholders which directly control the notifying company. Although the notification by Tönnies Holding included information about the structure of the Tönnies company group, which dominates the value-added chain of sow slaughtering and processing in Germany, it omitted details on the majority holdings which Mr Clemens Tönnies as controlling shareholder of Tönnies Holding has gradually acquired in companies of the zur Mühlen group since 1998 via the trustee Peter zur Mühlen. The zur Mühlen group is one of the leading companies in the European meat and sausage industry. It unites under one roof well-known brands such as Böklunder, Könecke, Redlefsen, Schulte and Plumrose and claims to be the number one supplier of pre-packed and canned sausage in Germany.

It was only in the course of its merger control proceeding that the Bundeskartellamt became aware of the link between Mr Clemens Tönnies and the zur Mühlen group. This participation, however, was highly relevant for the assessment of the merger. The merger project was prohibited in November 2011 as it was expected to strengthen the dominant positions of the Tönnies group in the procurement of cull sows and in the distribution of sow meat to processors (sausage manufacturers) (cf. Bundeskartellamt press release of 17 November 2011). The prohibition decision is not yet final due to an appeal by Tönnies which is still pending at the Düsseldorf Higher Regional Court.

Mr Tönnies has agreed to have the proceedings terminated by settlement. The Bundeskartellamt has consequently not fully exhausted the scope of fine of 100,000 euros envisaged for this administrative offence. This decision can be appealed to the Düsseldorf Higher Regional Court.