At the end of last year, Germany’s Federal Cartel Office imposed fines in the amount of EUR 175 million against five aluminum forging companies and ten employees of the affected companies (Notice of the Federal Cartel Office of 23 December 2020) based on anti-competitive arrangements (“cartel”) which had existed for years.
Arrangement of costs and rebates
According to the Federal Cartel Office, representatives from the participating companies met a total of 23 times between the years 2006 and 2018 and exchanged information about costs and rebates within the framework of the so-called “Aluminum Forging Group.”
In the course of these meetings, according to statements made by the Federal Cartel Office, a basic understanding was reached among the participants as to how procurement costs and cost increases would be passed on to customers. To this end, the participants exchanged information about individual purchasing costs and rebates, as well as discussing possible forms in which rebates could be offered to customers and how successful those rebates were.
Investigation triggered by a leniency application
The Federal Cartel Office’s investigation was triggered by information provided by one of the participants in the cartel. This company took advantage of the “leniency” program (§ 33e of the Act against Restraints on Competition), thereby avoiding a fine. The company which provided the information, as well as the other participating aluminum forging companies, are evident from the Notice issued by the Federal Cartel Office.
Damages for injured companies
Since such anti-competitive arrangements typically cause injuries, particularly to customers of the participating companies, the injured parties are typically entitled to damage claims, as well as claims for desistance (§ 33a of the Act against Restraints on Competition) (only in German). In this case, the affected customers consist in particular of manufacturers and suppliers in the automotive industry, the motorcycle industry and other sectors. Accordingly, the customers of each of these companies are advised to closely scrutinize relevant projects which may have been executed in recent years. They can base their examination on the Federal Cartel Office’s case report, which is expected in the coming days and weeks, and which will contain detailed information about the case.
Federal Cartel Office’s order not yet final and binding
As of the publication of this article, the fines which have been imposed are not yet final and binding. The participating companies have the option of appealing the decision within one month, in which case the Higher Regional Court of Dusseldorf would rule on the appeal. At least one of the participating companies has already announced that it would take steps in this direction.
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