Biscuit manufacturer Bahlsen, in the final stretch, replaces Noerr with Luther

For over ten years, there has been a legal battle within the confectionery cartel, reaching up to the Federal Court of Justice and back. Now, the complex concludes for three manufacturers with a total fine of 6.3 million euros before the Higher Regional Court (OLG) in Düsseldorf. In an unusual move, Bahlsen changed its legal representatives just before the deadline.

In the end, the manufacturers agreed to a settlement, thereby avoiding another legal marathon in the dispute with the Federal Cartel Office and the Public Prosecutor’s Office. Accordingly, the biscuit manufacturers Bahlsen and Griesson – de Beukelaer will pay fines of 3.6 and 2.3 million euros, while CFP will pay 450,000 euros. CFP includes brands such as Mentos and Fisherman’s Friend.

From 21 to 6 million euros in fines

Compared to the amounts that were initially at stake during the mammoth trial, the fines seem bearable. In the cartel proceedings concluded in 2013, the authorities had set total fines of 14 million euros. However, the manufacturers protested, initially shooting themselves in the foot: The OLG Düsseldorf, then the 4th cartel senate led by Judge Manfred Wintscheidt, increased the fines from 14 to 21 million euros in 2017.

The tables turned in 2019 before the Federal Court of Justice. The cartel senate, led by BGH President Bettina Limperg, identified “fundamental legal errors” and “deficient evaluation of evidence” in the decision of the Düsseldorf Senate—overturning the OLG decision. Many companies then began to hope they could escape the matter without any fines.

After the decision of the Federal Court of Justice (BGH), proceedings against Feodora, the confectionery association BDSI, and several personally accused individuals were dropped. Feodora and the association did not participate in the BGH proceedings, but both benefited from the success of Bahlsen and others: Their legally binding OLG judgments were also overturned by the Karlsruhe judges. The OLG, however, chose not to reopen these proceedings. The three remaining manufacturers, for whom the process concludes this week, did not want to be released from the scrutiny of the Federal Cartel Office and the Public Prosecutor’s Office.

Cartel Office lapses – “unlawful delay of legal proceedings” Nevertheless, the 6th cartel senate led by Dr. Ulrich Egger took several factors in favor of the companies into account, ultimately reducing the fines. For example, allegations were restricted to shorter periods. The cooperation of the companies, which shortened the proceedings through the settlement and also improved their compliance systems in recent years, was also considered. Most unusually, everyone received a 25% discount on fines due to “unlawful delay of legal proceedings.” Among other things, the Cartel Office had only subsequently submitted investigation files.

In total, the settlement concludes a complex that began almost 16 years ago with searches. The confectionery cartel consists of three different complexes, including a price cartel for chocolate in which Bahlsen and others were not involved. In the subcomplex ‘Conditions Agreement,’ which now comes to an end, it was about information exchange, such as negotiations with retailers, but not about hard price agreements.

The advisors

Representatives for Bahlsen:

In-house (Hannover): Dr. Marc Zimmermann (General Counsel)

• Luther (Munich): Dr. Sebastian Janka; Associate: Samira Altdorf (Düsseldorf; both Antitrust Law)

Representatives for Griesson – de Beukelaer:

• Jones Day (Frankfurt): Dr. Jürgen Beninca (pictured, right) (Frankfurt); Associate: Nicole Seibert, Peter Möckel (Düsseldorf; all Antitrust Law)

Representatives for CFP Brands Süßwarenhandels GmbH Redeker Sellner Dahs (Brussels/Bonn):

• Dr. Andreas Rosenfeld (pictured, left), Dr. Sebastian Steinbarth (both Antitrust Law), Dr. Daniel Neuhöfer; Associate: Dr. Lukas Schefer (both Criminal Law)

Representatives for the Federal Cartel Office:

• Litigation and Legal Department Markus Rauber, Andrea de Lagaye de Lanteuil

Higher Regional Court Düsseldorf, 6th Cartel Senate

• Dr. Ulrich Egger (Presiding Judge), Dr. Heike Kühneweg, Stefan Rubel

Background

Of the three law firms on the companies’ side, only Redeker has been with CFP since day one of the confectionery cartel. For Rosenfeld and his team, the proceedings began in the spring of 2008 with searches by the Cartel Office.

Griesson – de Beukelaer was represented in the cartel proceedings by the Cologne antitrust lawyer Dr. Bettina Bergmann. After the fine decision in 2013, Morgan Lewis took over, recommended for the mandate. At that time, as today, Beninca led the way, switching to Jones Day in 2017 and taking the mandate with him.

Three law firms for Griesson, two for Bahlsen For over ten years, Bahlsen was represented by a team led by Munich-based Noerr partner Dr. Alexander Birnstiel. The participants did not provide information to JUVE on why the biscuit manufacturer replaced the team just before the start of the current proceedings and instead engaged Luther. In any case, the move is very unusual, as it involves a significant effort to replace legal representatives who have been involved in a complex for many years.

What may have made the decision somewhat easier in this particular case: Even the new legal team alongside Bahlsen did not have to start completely from scratch. The leading Luther partner, Janka, was a Salary Partner at Noerr until 2019 – and was part of the team of Birnstiel, whom he now replaced, also involved in the confectionery cartel. Janka was responsible for representing a former Bahlsen manager, against whom the proceedings were dropped. In that sense, Janka is familiar with the dispute complex, and the Bahlsen legal department was familiar with Janka.