On August 1, 2012, the German Federal Cartel Office (FCO)
fined confectionary manufacturer Haribo EUR 2.4 Million
(approximately US$ 3 Million) for illegally sharing competitively
sensitive information with a competitor. The fine is significant
insofar as it was imposed for a "stand-alone" information
According to the FCO's press release1, the German
competition authority opened proceedings against German-based
Haribo and two further confectionary manufacturers following a
leniency application by Mars.
The FCO found that senior sales executives of the four
manufacturers met regularly during the years 2006 and 2007 for
informal talks. During these meetings the competitors informed each
other about requests from their customers for discounts and
rebates. They also discussed how they would intend to deal with
such customer requests. Andreas Mundt, the FCO's president
clarified that while such conduct does not amount to classic
hard-core violations of competition law, the sharing of information
between competitors can be illegal as well.
The FCO also noted that the fine was reduced since Haribo
cooperated during the investigation and that the proceeding was
terminated by way of a settlement.
Exchanges of competitively sensitive information between
competitors are deemed illegal under EU and German competition
rules (rules in this area are harmonized across the EU territory).
While information exchanges are typically viewed as a means of
facilitating further anti-competitive practices such as price
fixing or customer allocation, the information exchange in itself
constitutes an infringement. In this regard, it should be noted
that comparable US antitrust rules on illegal information exchange
are slightly more lenient. This is because, under US rules,
information exchange is viewed under a rule of reason analysis
which allows companies to justify certain exchanges. By contrast,
it is usually not possible to justify an exchange of competitively
sensitive information among competitors under EU/German competition
rules. Moreover, under US rules a finding of an agreement is
required whereas in the EU competitors engaging in a concerted
practice (which essentially requires just a showing of a competitor
contact plus a subsequent marked conduct that is based on such
contact) can infringe competition rules.
The fine level of EUR 2.4 Million is significant considering
that Haribo "only" exchanged information with competitors
without engaging in price fixing, market allocation or similar
hardcore violations. Also, proceedings by the FCO against the two
other competitors who were involved in the informal talks are still
pending. In March 2011 the FCO levied a record fine of EUR 38
Million (approximately US$ 47 Million) against three consumer goods
manufacturers, Kraft Foods, Unilever and Dr. August Oetker for
exchanging information on negotiations with customers.
Interestingly, it was Mars – now and also in March 2011
– that blew the whistle.
Companies conducting business in the European Union and Germany
should be mindful of this decision and ensure that proper
compliance programs are in place that regulate and govern contacts
and communication with competitors.
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 EU's one-stop shop principle for concentrations faces an uncertain future following for the UK's Brexit decision. Several scenarios could play out...
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).