Decision to dismiss BayWa’s legal action to establish Bundeskartellamt’s liability is now final

The German Federal Court of Justice decided on 30 June 2022 to dismiss in the last instance Munich-based BayWa AG’s appeal to establish the Bundeskartellamt’s liability regarding plant protection products. Originally 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. Neither the Regional Court in Bonn (decision of 2 December 2020, file number 1 O 201/20) nor the next instance court, the Higher Regional Court in Cologne (decision of 21 September 2021, file number 7 U 166/20) had accepted BayWa’s claim.

Andreas Mundt, President of the Bundeskartellamt: “We are pleased that the courts have followed our line of argument in all three instances and that the dismissal of the claim is now final.”

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.

Andreas Mundt: “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 become final.“

After the administrative fine proceedings, BayWa had brought an action before the Regional Court in Bonn accusing 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. The Bundeskartellamt had already thoroughly investigated and dismissed BayWa’s accusation in the administrative proceeding (see press release of 2 December 2020)