On 1 August 2012 the Federal Cartel Office ("FCO") [Bundeskartellamt, BKA] fined the confectioner Haribo and its responsible sales staff a sum of ca. € 2.4 million for impermissibly exchanging sensitive competitive information. The Federal Cartel Office therewith confirmed its course of action of punishing with high fines unfair competitive conduct which "only" concerns the exchange of information as opposed to the classical hard-core agreements on prices, territories, customers or quotas.
During the years 2006 and 2007, sales staff of the confectioners at issue regularly met within the scope of an information discussion round and exchanged information on negotiations with retailers as well as on the rebate demands of the retail trade. The FCO considered this information suited to influence the market conduct of the confectioners in their negotiations with the retailers, since information of this type is normally handled confidentially. The proceedings were instigated on grounds of a leniency application filed by Mars GmbH, which consequently also was not fined.
The Federal Cartel Office's fining practice for impermissible exchanges of information
Back in 2008 the Federal Cartel Office already fined nine
companies in the perfume and cosmetics manufacturing sector as well
as thirteen managing directors a total sum of € 9.6
million. Sales data and information on market strategies and market
parameters had regularly been exchanged between the most important
representatives of this branch. Million-figure fines for the
impermissible exchange of information were also imposed by the
Federal Cartel Office in 2008 upon seven brand manufacturers of
drugstore products as well as their sales managers. At meetings of
the working group, information on rebate demands made by retailers
and on the current status of the negotiations was exchanged. Of the
total fine imposed upon the drugstore product manufacturers of
€ 37 million, as much as € 18 million was for the
said exchange of information. On the same grounds, the Federal
Cartel Office likewise fined three consumer goods manufacturers a
total of € 38 million in 2011.
Conduct at talks and during association meetings
In talks with competitors, especially during association and
trade meetings, the utmost of caution must be applied and the
strictest attention paid to ensuring that the secrecy of
competition between members is not impaired. The following topics,
in particular, may not be the subject matter of talks and meetings
- Purchase and/or sales prices
- Price and market strategies
- Current sales
- Purchase/sales volumes
- Production capacities
- Specific costs
In the event of an investigation by the Federal Cartel Office, the enterprises are obliged to prove circumstances from one can clearly derive the lack of any unfair competitive conduct during meetings. For this reason, an active approach must be taken and a protocol made when matters of a sensitive nature pursuant to antitrust law are addressed in talks or at a meeting. In cases of doubt, one should clearly and distinctly distance oneself from such an exchange of sensitive competitive information (where possible, this should also be documented) and end the talk or meeting without undue delay. If possible, check the agenda of association events in advance as to whether the topics to be addressed concern matters of a sensitive antitrust nature.
In case of branch-internal notification systems (e.g. for sales
data) the participating enterprises must ensure that confidential
information transmitted to the notification system cannot be passed
on in an individualised manner to the other competitors. The
transmitted competition-relevant information of the enterprises may
solely be received by an independent third party (e.g. the
association president) and must subsequently be passed on to the
individual association members in a consolidated form, i.e. not
attributable to the individual members. The exchange of generally
permissible information (e.g. from published annual reports) and
historical data (as a rule older than one year), in contrast, is
generally of no concern under antitrust law. The publication and
distribution of internal company data, however, should always be
examined in the individual case as to its permissibility under
Conduct which has already been discontinued can still become the subject matter of fine sanctions as long as the breach of antitrust law has not become time-barred.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.