Federal Court of Justice Dismisses BayWa’s Official Liability Claim Against FCO – Commentary


In a judgment of June 30, 2022, the Federal Court of Justice definitively dismissed a civil liability action brought by the agricultural group BayWa AG against the Federal Cartel Office (OFC).

BayWa sued the FCO for disadvantages in a phytosanitary cartel case due to price fixing. As part of the cartel proceedings, fines of €157 million were imposed on BayWa and seven other wholesalers and their managers, of which BayWa was liable for €68 million. The procedure was initiated because, according to FCO chairman Andreas Mundt, the companies had “agreed on price lists, discounts and certain individual prices when selling to retailers and end customers in Germany”. The procedure ended with a settlement. This is an amicable termination of the procedure, which regularly leads to an acceleration and a shortening of the antitrust fine procedure, as well as a reduction of the fine.

BayWa subsequently filed a formal liability claim against the FCO for breach of the equality principle, as the authority approached three other cartel participants early in the investigation in response. to an anonymous denunciation and had suggested that the case be clarified internally and, if necessary, that a request for leniency be filed.

BayWa’s lawsuit had already been dismissed in 2021 by the Bonn Regional Court – in the opinion of the chamber, there was no claim for damages by BayWa against the FCO based on a breach of duty official. The Higher Regional Court in Cologne rejected BayWa’s appeal against the decision of the Regional Court in Bonn because, as the scope of protection of the official liability standard did not include damages if the potentially injured party would have been able to avoid the state action through legal remedies. According to the Senate, since BayWa had not appealed the fine, there was a willful failure to avoid the damage by means of a remedy. It would be contrary to the principle of the unity of the legal system for an official liability action to be used to nullify a legally compliant result of an investigation and a fine.

This is the second formal liability action brought against the FCO. In 2014, GN Store Nord A/S sued the FCO for €1.1 billion in damages based on an illegal restraining order against a proposed merger with a hearing aid manufacturer. The lawsuit failed because, according to the Düsseldorf Regional Court, the authority had carefully and thoroughly examined the merger and thus fulfilled its duty of care.

For more information on this subject, please contact Solvei Hartmannsberger to Fieldfisher by telephone (+49 211 950 749 0) or by e-mail ([email protected]). The Fieldfisher website can be accessed at www.fieldfisher.com.


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