In 2017, the Düsseldorf Higher Regional Court imposed millions in fines against several confectionery manufacturers. But the BGH saw procedural errors and overturned the verdict. The case is now being retried.
It’s about millions in fines against three confectionery manufacturers for alleged competition violations. The Düsseldorf Higher Regional Court is now once again dealing with a legal dispute that has lasted for years. The proceedings against the companies Bahlsen, Griesson de Beukelaer and CFP Brands will open this Tuesday. The Federal Court of Justice (BGH) overturned an earlier court ruling in 2019 due to procedural errors.
The reason for the dispute dates back more than 15 years: a leniency application from Mars GmbH triggered an investigation by the Federal Cartel Office. Leading German confectionery manufacturers are said to have exchanged information about negotiations with the food trade and some planned price increases between 2003 and 2008. The competition authority saw this as a violation of antitrust law and in 2013 imposed fines of 19.6 million euros on members of a working group of the “Conditions Association” of the German confectionery industry. Some companies, including Haribo, Katjes, Kraft, Storck and Zentis, accepted the penalties.
Other defendants – such as Bahlsen, Griesson de Beukelaer and CFP Brands as well as the Federal Association of the German Confectionery Industry (BDSI) – lodged an objection. However, in 2017, the 4th Cartel Senate of the Düsseldorf Higher Regional Court not only ruled in favor of the Federal Cartel Office, but also increased the fines to almost 21 million euros. The reason: Although there were no coordinated price agreements, there was a regular exchange of information in violation of antitrust law about negotiations with the food trade and, in some cases, about intended price increases.#
Complaint to the Federal Court of Justice
Three companies then successfully lodged an appeal against the ruling with the Federal Court of Justice. In 2019, the BGH referred the case back to the 6th Cartel Senate of the Düsseldorf Higher Regional Court and the presiding judge Ulrich Egger for a new hearing (KRB 10/18). The statement said that essential evidence and statements from witnesses had not been sufficiently assessed.
“It will be difficult to reopen the matter after all these years, because the memories of witnesses are fading. This improves the companies’ prospects of a lower fine or even of the proceedings being dropped,” says antitrust lawyer Johannes Brück. According to a spokeswoman for the court, there were negotiations with the companies before the main hearing began. Those involved did not want to comment on the content. An initial 14 meeting dates have been scheduled until January 2024.
Source: Stern
