Germany: Caution Required When Exchanging Confidential Information

Last Updated: 29 August 2012
Article by Maxim Kleine, Daniel Dohrn and Simon Liebich

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 with competitors:

  • Purchase and/or sales prices
  • Discounts
  • 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.

Notification systems

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 antitrust law.
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.

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