Fede­ral Car­tel Office impo­ses fines against an alu­mi­num cartel

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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