On January 14, 2021, the Nuremberg-Fürth Regional Court dismissed an action for damages against a confectionery manufacturer, which participated in an information exchange in the so-called “Four Party” discussion group.[1]

The FCO found that representatives of the defendant and three other manufacturers had met between 2006 and 2008 to coordinate price increases and to exchange information on the state of the annual price negotiations with retailers. The defendant had disclosed the conduct and received immunity from fines.

The plaintiff, a grocery discounter, filed a damages actions solely against the immunity recipient in 2015. Even though the FCO had not issued a decision against the immunity recipient and the decisions against other members of the “Four Party” discussion group were not binding for the defendant, the Court found the findings in those decisions to be sufficient circumstantial evidence to prove the defendant’s participation in the infringement as such.

The Nuremberg-Fürth Regional Court still dismissed the claim because the plaintiff did not show a causal damage that followed from the violations of the competition rules. Based on circumstantial evidence—e.g., the exchange of only vague information, the price increase for raw materials, inflation during the same period—the Nuremberg-Fürth Regional Court concluded that the plaintiff failed to prove that the cartel had caused plaintiff to pay higher prices. Moreover, the plaintiff did not respond sufficiently to refute the passing-on defense raised by the defendant.

[1] Vierer-Runde (19 O 9454/15), Nuremberg-Fürth Regional Court decision of January 14, 2021, available in German here.