A ruling of the Regional Court of Bonn dated 2 December 2020 but disclosed in Q1 2021, has demonstrated that the Bundeskartellamt has a margin of discretion on how it conducts an investigation.[1] The ruling concerned a damages claim brought by pesticides wholesaler BayWa, which company was identified by the Bundeskartellamt as a key member of a cartel amongst wholesalers of plant-protection products. After the Bundeskartellamt had received an anonymous tip-off about the cartel, it contacted (only) three of the possible cartel members and provided them with the opportunity to cooperate under the leniency programme. These companies subsequently cooperated and provided the Bundeskartellamt with information based on which it could make its case against the (other) wholesalers, among which was BayWa. BayWa argued that the Bundeskartellamt had acted discriminatory by contacting only some of the suspected cartel members and not all of them and therefore claimed damages. The Regional Court of Bonn did not agree and stated that this investigative method did not breach any official duty or law by which the Bundeskartellamt is bound. Moreover, the court found that Bayway had not sufficiently shown that a causal link existed between the contested investigation method and the damages claimed.[2]

[1] Landgericht Bonn 2 December 2020, 1 O 201-20, ECLI:DE:LGBN:2020:1O201.20.00.

[2] See also the press release of the Bundeskartellamt, ‘Amtshaftungsklage der BayWa gegen das Bundeskartellamt abgewiesen’, 2 December 2020.