In a decision dated 30 June 2022, the Federal Court of Justice dismissed with final effect an official liability suit brought by the agricultural group BayWa AG against the Federal Cartel Office (FCO).

BayWa sued the FCO for disadvantages in a plant protection cartel case due to price agreements. In the cartel proceedings, fines of €157 million were imposed on BayWa and seven other wholesalers, as well as their responsible parties, of which BayWa was liable for €68 million. The proceedings were initiated because, according to FCO President Andreas Mundt, the companies had "colluded on price lists, discounts and some individual prices when selling to retailers and end customers in Germany". The proceedings were concluded in a settlement. This is an amicable termination of proceedings, which regularly leads to an acceleration and shortening of the antitrust fine proceedings, as well as to a reduction of the fine.

BayWa subsequently filed a suit for official liability against the FCO on the grounds of a violation of the principle of equality, as the authority had addressed three fellow cartel participants at the beginning of the investigation in response to an anonymous tip and suggested that the matter be clarified internally and, if necessary, that a leniency application be filed.

BayWa's suit had previously been dismissed in 2021 by the Bonn Regional Court – in the chamber's opinion, there was no claim for damages by BayWa against the FCO on the basis of a breach of official duty. The Cologne Higher Regional Court dismissed BayWa's appeal against the ruling of the Bonn Regional Court because, as the scope of protection of the official liability standard did not include damages if the potentially injured party could have averted the state measure by means of legal remedies. According to the Senate, as BayWa had not lodged an appeal against the fine, there was a deliberate failure to avert the damage by means of an appeal. It would be contrary to the principle of the unity of the legal system if an official liability claim were to be used to reverse a legally compliant result of an investigation and fine proceeding.

This is the second official liability suit to be brought against the FCO. In 2014, GN Store Nord A/S sued the FCO for €1.1 billion in damages based on an unlawful prohibition order against a planned merger with a hearing aid manufacturer. The suit failed because, according to the Düsseldorf Regional Court, the authority had carefully and extensively examined the merger and thus fulfilled its duty of care.

For further information on this topic please contact Solvei Hartmannsberger at Fieldfisher by telephone (+49 211 950 749 0) or email ([email protected]). The Fieldfisher website can be accessed at