BayWa AG has filed a public administration liability suit against the Bundeskartellamt (German federal antitrust authority) for violation of the principle of equality under constitutional law with Cologne Regional Court. Since early 2015, the Bundeskartellamt has been investigating claims of collusion to limit competition in the crop protection market. In BayWa AG’s view, the authority infringed the constitutional principle of equality and the right to fair proceedings during the investigations.
The accusation of violation of the constitution relates, in particular, to the start of the antitrust proceedings: As the Bundeskartellamt admits, an employee of the authority informed three of BayWa’s competitors of an anonymous tip regarding antitrust violations in the crop protection market, making explicit reference to the leniency programme. That gave those companies the opportunity to submit the first applications for leniency to the Bundeskartellamt and avoid being fined. BayWa was not given that chance.
“The Bundeskartellamt’s selective notification is a serious violation of the principle of equality under constitutional law,” says Klaus Josef Lutz, Chief Executive Officer of BayWa AG. “Antitrust proceedings must also be conducted according to the principle of the rule of law, and the affected companies’ right to fair proceedings must be protected. The authority cannot arbitrarily give individual companies preferential treatment, thereby deciding which companies will not face a fine,” Lutz adds.
Legal opinions regarding antitrust and constitutional law by respected professors confirm that the Bundeskartellamt seriously infringed the principle of equality and the right to fair proceedings. BayWa is therefore suing for damages in the amount of fine it paid and the cost of its defence, which total approximately €73 million, in a public administration liability suit.
“The Bundeskartellamt has behaved in a way that seriously violates the constitution and cannot be accepted without contradiction. We have a duty to our shareholders to take this path. The suit does not result in a significant financial risk to BayWa,” says BayWa CEO Lutz.
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