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
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.
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).