Last Thursday, BayWa AG filed an official liability suit against the Federal Cartel Office at Cologne District Court, for violation of the constitutional principle of equality. Since the beginning of 2015, the Federal Cartel Office has been investigating allegations of agreements restricting competition in the trade of plant protection products. During these investigations, BayWa AG is of the opinion that the authority has violated the constitutional principle of equality and the principle of a fair trial.
In particular, the accusation of breach of the constitution relates to the start of the cartel proceedings: An employee of the Cartel Office - as admitted by the Federal Cartel Office - specifically informed three of BayWa's competitors, with reference to the Leniency Programme, that there had been an anonymous reference to a cartel offence in the area of plant protection. As a result, only these companies were given the opportunity to be the first to submit a so-called leniency application to the Cartel Office and to remain free of fines. BayWa was not given this opportunity.
Principle of equality
"The Bundeskartellamt's selective information has seriously violated the constitutional principle of equality", says Klaus Josef Lutz, Chairman of the Board of Management of BayWa AG. "Cartel proceedings must also be conducted in accordance with the principles of the rule of law and guarantee a fair trial for the companies concerned. It must not be allowed that the authorities arbitrarily give preference to individual companies and thus decide which company will remain free of fines," says Lutz.
Legal opinions by well-known scholars on cartel and constitutional law have also confirmed that the Bundeskartellamt's conduct constitutes a blatant violation of the principle of equality and the principle of fair proceedings. BayWa is therefore asserting the fine already paid and the defence costs incurred as damages in the form of an official liability action of around EUR 73 million.
Flagrant breach of the constitution
"The Bundeskartellamt's conduct constitutes a blatant violation of the constitution and must therefore not be accepted without objection. We have an obligation to our shareholders to follow this path. The filing of the lawsuit does not give rise to any significant financial risk for BayWa," says BayWa CEO Lutz.
Despite the constitutional concerns, BayWa AG has cooperated fully with the German Federal Cartel Office in clarifying the accusations. The fine proceedings against BayWa were concluded in February 2020 with the payment of the fine of EUR 68.6 million set by the Federal Cartel Office.
For more information: www.baywa.com