Düsseldorf Higher Regional Court confirms fines against confectionery manufacturers for exchanging information

Yesterday the Düsseldorf Higher Regional Court confirmed and in some cases even increased the Bundeskartellamt's fines against four confectionery manufacturers and an industrial association. The Bundeskartellamt had imposed the fines in early 2013 and mid 2014 because the companies involved had over several years exchanged information on the state of negotiations with major food retail chains and to some extent on envisaged list price increases (see press release of 31.01.2013 and case summary "Bußgeldverfahren gegen Hersteller von Süßwaren" (available only in German).

Andreas Mundt, President of Bundeskartellamt: "The Higher Regional Court has once again confirmed that not only are classical agreements between companies prohibited under competition law but also that companies may also not exchange any competitively sensitive information between them. When companies exchange information on the current state of negotiations with the opposite side of the market or on planned price increases, this restricts competition between them."

In its proceeding the Bundeskartellamt had found that at least between the end of 2003 and early 2008 such information had been exchanged at meetings of a working group of an association of the German confectionery industry (Konditionenvereinigung der Deutschen Süßwarenindustrie e.V.). Ten companies and the Federal Association of the German Confectionery Industry (Bundesverband der Deutschen Süßwarenindustrie e.V. (BDSI) were involved in the information exchange. At that time the Bundeskartellamt had imposed fines totalling approx. 20 million euros.

The four companies Bahlsen GmbH & Co. KG, Griesson de Beukelaer GmbH & Co. KG, CFP Brands Süßwarenhandels GmbH & Co. KG and Feodora Chocolade GmbH & Co. KG as well as the BDSI, which together were fined approx. 14 million euros, had appealed against the authority's decision. Yesterday the Higher Regional Court confirmed the fines and in some cases increased them by in total around seven million euros to just over 21 million euros.

In the Bundeskartellamt's view this is an important court judgement on information exchange. The authority had already imposed fines in several cases involving the exchange of sensitive information. However, there was no judicial review of the authority's decisions in those cases because there were no appeals against them or, if there were any, these were withdrawn again during the court proceeding, e.g. by Nestlé Deutschland AG in the "Hema-Vertriebskreis“ case (see case summary "Bußgeldverfahren gegen Hersteller von Konsumgütern") (available only in German).
The Regional Higher Court's decision is not yet final and can be appealed on points of law to the Federal Court of Justice.