On July 12, 2022, the Commission fined metal packaging producers Crown and Silgan €31.5m for breaching Article 101 TFEU by exchanging sensitive information and coordinating their commercial strategies for the sale of metal cans and closures in Germany over a three-year period.[1] The products concerned were metal lids for glass jars, coated with lacquers containing bisphenol A (“BPA”) or BPA-free lacquers and metal cans coated with BPA-free lacquers. These products were predominantly used to package foods, such as vegetables, fruit, meat, and fish.

In March 2015, the German Federal Cartel Office (“FCO”) opened an investigation into Crown, Silgan and other metal packaging manufacturers following an anonymous tip. The FCO referred the proceedings to the Commission after finding the conduct could extend to markets outside Germany and that German law applicable at the time could allow the investigated companies to escape liability.[2] The Commission initiated proceedings in April 2019 and conducted dawn raids in several Member States.

The Commission found that Crown and Silgan had engaged in a single and continuous infringement consisting of two parts:

  • First: Regular exchanges of detailed data on their most recent past annual sales volumes of metal lids to individual customers, lasting from March 11, 2011 until March 21, 2014.
  • Second: Coordination to impose a surcharge and apply shorter minimum durability recommendations for metal cans and lids coated with BPA-free lacquers, lasting from April 18, 2013 until September 18, 2014.

Crown and Silgan chose to settle the investigation after a two-year investigation that earned them a 10% reduction in the fine. Demonstrating the benefits of cooperation, Crown also received a 50% leniency reduction and was fined only €7.7 million compared to €23.9 million for Silgan.

Crown and Silgan’s coordination took place at a time when the packaging industry was transitioning away from BPA and “towards less harmful metal cans and closures.”[3] BPA was historically used in the lining of metal cans and other food packaging, but by 2011, there were growing efforts to phase out its use due to public health concerns. These have since culminated in EU regulations that severely restrict the use of BPA varnishes and coatings in food packaging.[4]

Against this backdrop, the Commission may have considered information on customer orders for BPA-containing vs BPA-free products to be especially sensitive because they allowed Crown and Silgan to monitor, exploit, and potentially affect the pace of this transition. In particular, the Commission found that these exchanges led to Crown and Silgan coordinating on surcharges and minimum durability recommendations for the new products.[5]

The case shows that companies must be particularly cautious during periods of transition to ensure that their response to regulatory changes or market developments do not give rise to improper coordination. This case is unlikely to be the last word on BPArelated antitrust infringements, as the French Competition Authority is currently investigating over 100 companies and 14 trade associations for potentially concealing BPA in food packaging, in potentially one of the largest cartel probes ever.[6]

[1]      Metal Packaging (Case AT.40522), Commission Decision of July 12, 2022, not yet published.

[2]      Crown and Silgan had dissolved or reorganized their relevant subsidiaries before the FCO concluded its investigation. At the time, and prior to the entry into force on June 9, 2017 of § 81a of the 9th Amendment to the German Act against Restraints of Competition, there was no general legal basis under German competition law to hold a parent company liable for infringements of competition law committed by its subsidiaries. The FCO could fine a parent company only if it had failed to prevent the subsidiary’s infringement and thereby violated its own supervisory duty. The 9th Amendment closed this gap by aligning German competition law with the EU law concept of a single economic undertaking, thereby introducing group-wide joint and several liability for fines. For more detail on this change in German competition law, see Dr. Romina Polley, “Cartel Enforcement and Regulation in Germany,” Presentation at Competition Law Germany, Düsseldorf, September 26, 2017, pp. 31–37, available here.

[3]      See Commission Press Release IP/22/4483, “Antitrust: Commission fines the metal packaging producers Crown and Silgan €31.5 million in cartel settlement,” July 12, 2022.

[4]      See Commission Regulation (EU) 2018/213 of 12 February 2018 on the use of bisphenol A in varnishes and coatings intended to come into contact with food and amending Regulation (EU) No 10/2011 as regards the use of that substance in plastic food contact materials (“Regulation 2018/213”), OJ L41/6, recital 29.

[5]      See Commission Press Release MEMO/10/201, “Antitrust: Commission adopts first cartel settlement decision – questions & answers,” May 19, 2010.

[6]      See Autorité de la Concurrence Press Release “Bisphenol A in food containers: the general rapporteur indicates having stated objections to 101 companies and 14 professional organisations,” October 12, 2021. See also our October 2021 French Competition Law Newsletter for a discussion of the procedural novelty of the FCA making this allegation public.