The FCO has imposed additional fines on retailers in the grocery sector for cartel infringement due to resale price maintenance (rpm), with total fines of €90.5 million. This time the fines mainly relate to beer (brands of brewery AB InBev Germany). The case concerns pricing agreements between the brewery and retailers regarding the beer retail (shop) prices, in terms of minimum price level for normal prices, promotions and, as the case may be, so-called continuous low prices.
press release by the FCO
Fined companies include several Edeka retailers, Metro and Netto, and a beverages wholesaler. The FCO also fined discounter Lidl and drugstore Rossmann for rpm regarding Haribo products and Melitta coffee products, respectively. Other than Rossmann, all fined companies terminated the proceedings through settlements. The FCO says that this largely concludes the vertical proceedings in the grocery sector. To date, the FCO has imposed total fines in this area of around € 242 million. There are only proceedings against three companies pending in the beer and confectionary products, which the FCO expects to conclude within a few months.
Interestingly, in the current case the FCO did not impose any fine against AB InBev and retailer Rewe (that was also involved in the rpm practices). Both companies cooperated extensively in the proceedings. The FCO confirms in its case summary that the leniency program is not applicable to vertical price fixing. However, the FCO based the two companies’ de facto immunity from fines on its discretion when setting the fine amount, in the context of which it takes into account cooperation as a mitigating factor. Rewe had already cooperated prior to the initiation of proceedings, and according to the FCO AB InBev’s cooperation contribution allowed proving that there also were such rpm agreements with other retailers than Rewe. These elaborations indicate that even though the leniency program is not applicable, the FCO applies the program’s requirements for immunity from fines (uncovering or enabling to prove the existence of an infringement) mutatis mutandis in rpm cases. Accordingly, the FCO supposedly created a precedent on which other companies in rpm proceedings may rely in the future.