According to industry sources, Nestlé will not agree to a
settlement with the BKartA in the case brought against it for the
exchange of competitively relevant information. Nestlé is
yet to be fined by the BKartA for its involvement in an exchange of
information with other manufacturers of consumer goods. Once issued
by the BKartA, it is strongly expected in the market that
Nestlé will contest the fining decision in court.
The initial investigation by the BKartA into the exchange of
competitively relevant information by manufacturers of consumer
goods was triggered by an application for leniency, filed by Mars
in 2008. Six manufacturers of consumer goods were consequently
investigated. The accusations levelled against the consumer goods
manufacturers allege that the producers exchanged information on
the status of year-end-discussions and in certain cases on future
price increases and that this conduct amounts to a cartel
The proceedings against five of the initial six defendants have
now been concluded, with varying results. Of the six defendants, no
fine was imposed on Mars (in accordance with the BKartA's
leniency programme) and no fine was imposed on Henkel, as the
company's conduct had already been dealt with by the BKartA in
its 'drugstore products' proceedings in 2008. Three of the
four remaining manufacturers, Kraft Foods, Unilever and Dr. Oetker,
agreed to have the proceedings terminated by way of settlement
earlier this month (17 March 2011) and were fined € 38
million in total for the anti-competitive information exchange (see
issue 513). Nestlé, as the only remaining defendant, is
not expected to settle and remains the last of the initial six
manufacturers against which a fining decision is yet outstanding. A
fining decision by the BKartA is expected shortly.
According to industry sources, Nestlé is bracing itself
to contest the fining decision (once it is issued) at the Higher
Regional Court ('OLG') in Düsseldorf. One of the major
questions in this case would be at which point an exchange of
information with competitors constitutes an infringement of
competition law. A second point of contention is likely to analyse,
whether such information exchanges have had any detrimental rather
than enhancing, effects on competition (a point which has always
been highly contested in information exchange cases).
Many in the market would be pleased if Nestlé really does
take these questions to the OLG, as a decision could shed some
light on the current practices of the BKartA, which are by many
considered too wide in their ambit. Once the expected fining
decision by the BKartA has been issued Nestlé will have to
consider its options, although the current position lends itself to
the speculation that Nestlé will bear its teeth and
To view Community Week, Issue 515 – 1 April 2011 in
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
By 27 December 2016, the Croatian Parliament needs to implement the Directive 2014/104/EU on antitrust damages actions, which is expected to streamline the procedure for private individuals and businesses to sue for damages...
The European Commission recently published its preliminary report on the E-commerce Sector Inquiry, identifying potential competition concerns in cross-border e-commerce of digital content and consumer goods.
The German government has recently published a bill that would significantly amend the criteria for determining whether an M&A transaction is subject to German merger control.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).