BayWa’s legal action to establish Bundeskartellamt’s liability dismissed

The action brought by BayWa AG, Munich, against the Bundeskartellamt to establish the authority’s liability was dismissed in full by the Regional Court in Bonn today (case no. 1 O 201/20). BayWa had filed a claim for damages in the amount of roughly 73 million euros due to alleged breaches of official duty in the context of fining proceedings against wholesalers of plant protection products. The decision is not yet final and may be appealed.

Andreas Mundt, President of the Bundeskartellamt: “We welcome the decision of the Regional Court in Bonn to dismiss BayWa’s action. The accusation raised by BayWa is incorrect and far-fetched.”

The action was preceded by antitrust proceedings in which the Bundeskartellamt had imposed fines totalling roughly 157 million euros on eight wholesalers of plant protection products and their representatives – including BayWa (see press release of 13 January 2020). The companies had agreed on price lists, discounts and some individual sales prices for retailers and end customers in Germany. All wholesalers concerned, including BayWa, had cooperated with the Bundeskartellamt during the proceedings, helped to clarify the matter and ultimately agreed to a settlement. All the fines imposed have meanwhile become final. After the fine proceedings had been terminated by agreement, BayWa then brought an action before the Regional Court in Bonn to establish official liability on the part of the Bundeskartellamt.

Andreas Mundt: “We were surprised by the action because the specific procedure for investigating the matter had previously been discussed in detail with BayWa, the company had acknowledged its involvement in the cartel, agreed to a settlement and, after all, had not taken legal action against the Bundeskartellamt’s fining notice.”

In the case brought before the Regional Court in Bonn, BayWa had accused the authority of having violated the principle of equality by contacting three other members of the cartel at the beginning of the investigations following an anonymous tip-off and suggesting that the matter be resolved internally and an application for leniency be possibly filed with the authority.

Andreas Mundt: “The Bundeskartellamt had already closely examined the allegation of a violation of law in the context of its proceeding and had dismissed this allegation as incorrect. In the anonymous tip-off about the cartel, BayWa had been presented as the main driver and had been the only company mentioned by name. It was therefore not pragmatic for tactical reasons to inform the potential main offender BayWa of the tip-off. In addition, BayWa – as any other company involved in a cartel – could have proactively applied to the competition authority for leniency and distanced itself from its unlawful actions at any time.”

The reasons for the court’s decision are not yet available.