After many years of investigation the German Federal Cartel Office (FCO) recently concluded parts of its vertical price fixing proceedings in the food retail sector by imposing quite significant fines. The following aspects are of particular interest:
FCO officially grants for the first time a full reduction of the fine in vertical restraints cases
It seems to be the first time that the FCO officially grants some companies concerned, i.e., InBev Deutschland Vertriebs GmbH & Co. KG, Mars GmbH, and Melitta Europa GmbH & Co. KG as well as – with respect to two product categories – REWE, a full reduction of the fine in return for their cooperation in a vertical case. It has been standing practice so far that the FCO officially only grants a reduction of up to 50% in vertical cases – in line with the leniency program that only provides immunity from fines in horizontal cartel cases. It is unclear whether this marks a policy change or whether in the case at hand there was a close link between a parallel horizontal cartel case and the vertical price fixing so that the FCO exceptionally decided not to sanction the leniency candidates for the vertical infringement.
In addition, it seems to be the first resale price maintenance case in which not only the manufacturer is sanctioned but also the retail level. Based on the FCO’s press release and the case summaries this is due to the fact that the retailers apparently played a rather active role. Interestingly, the FCO initially investigated a hub and spoke scenario, but had to fall back to purely vertical proceedings for lack of evidence. It remains to be seen whether there will be cases in the future in which both parties to resale price maintenance arrangements may be sanctioned.
