Fire truck cartel

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Example image of a fire engine: LF 20/16
Example image of an aerial rescue vehicle: DLK 23-12

The fire service vehicle cartel (also fire service cartel or fire service equipment procurement cartel ) was a cartel between several manufacturers of fire service vehicles on the German market, which was discovered by the Federal Cartel Office in 2011 . In a first method was to the producers of erasing and Rüstfahrzeugen determined, in a second process to the producers of aerial rescue vehicles .

Market situation

There are numerous domestic as well as some foreign suppliers on the fire fighting vehicle market in Germany. Most of the vehicles are sold in accordance with the applicable DIN standards (see also fire fighting vehicles in Germany ), a smaller proportion also according to special construction requests and individual designs. The main buyers of fire fighting vehicles in Germany are municipalities that are responsible for organizing local fire protection in accordance with the applicable state fire protection laws . The orders of the local authorities are doing on a regular basis as part of tenders awarded . In addition, the company fire departments of larger companies are on the buyer side.

In 2010, the fire fighting technology industry in Germany achieved total sales of around € 560 million. The market for fire fighting vehicles had a volume of around € 480 million. Around 2,000 to 2,500 fire engines are sold every year, including around 700 to 900 fire-fighting vehicles and 60 to 100 aerial rescue vehicles.

The four companies Iveco Magirus Brandschutztechnik, Schlingmann, Rosenbauer and Ziegler had a market share of around 90% on the market for fire fighting and rescue vehicles . In the market for aerial rescue vehicles, the two companies Metz Aerials and Iveco Magirus Brandschutztechnik had a combined market share of almost 100%.

The cartels

In February 2011 it became known that the incumbent manufacturers were involved in two cartels in the fire fighting vehicle market. On the one hand, they agreed to meet in the area of ​​fire engines, and on the other hand in the area of ​​aerial rescue vehicles.

Participating companies

Companies Seat logo
Iveco Magirus Brandschutztechnik GmbH Ulm Iveco Magirus Logo.svg
Metz Aerials GmbH & Co. KG Karlsruhe Metz Aerials Logo.svg
Rosenbauer Group Luckenwalde and Leonding / Austria Rosenbauer Logo.svg
Schlingmann GmbH & Co. KG Dissen in the Teutoburg Forest Schlingmann Logo.svg
Albert Ziegler GmbH Giengen on the Brenz

The company Iveco Magirus Brandschutztechnik was involved in both the extinguishing and aerial rescue vehicle cartel. In addition, a Swiss auditor was involved as a coordination body within the fire truck cartel, which was also fined.

The providers Empl (Austria), Lentner (Germany) and Gimaex-Schmitz (Germany) were not involved in the cartel.

Procedure in the cartels

Fire truck cartel

In the fire truck cartel, the manufacturers agreed on two levels. On the one hand there were meetings at the level of the company management (so-called Zurich Round ), on the other hand there were meetings at the level of the sales manager.

Zurich round

The company directors (managing directors and chairmen of the board of directors) of the cartelists met regularly from 2001 to 2009 at the eponymous airport in Zurich to make agreements. The meetings took place on an informal basis without written fixings (invitations, lists of participants, etc.) (so-called breakfast cartel ) on “neutral” Swiss soil. The Bundeskartellamt was able to prove a total of 19 meetings.

The content of the meeting was an exchange about the market situation in the fire fighting vehicle market. Since 2000, all companies involved have reported their respective incoming orders to the Swiss auditor, who compiled market statistics from the data. In addition, the companies had agreed target quotas and thus divided the entire market (production or quota cartel). At the meeting, the market statistics were used to check the extent to which the actual incoming orders matched the agreed target quotas. If this was not the case, measures were taken in the companies to bring the actual market share closer to the agreed target quota. General price increases from the companies involved were also agreed.

Sales manager round

Meetings were also held at the sales manager level. The sales managers of the companies involved met approximately every three months in a hotel in Biebelried or in motorway service stations, especially at the Kirchheimer Dreieck near Bad Hersfeld . At the meetings, lists of current tenders from municipalities were discussed at least until 2004. On the basis of this specific order situation and the results of the Zurich round, the parties involved agreed which company should fulfill which order and the tenders were split up. In order to guarantee the surcharge in accordance with the cartel agreement, the other companies pursued a correspondingly unfavorable discount policy .

Aerial rescue vehicle cartel

In the cartel on the market for aerial rescue vehicles, the companies involved, Metz and Iveco Magirus Brandschutztechnik, also reached agreements on the market allocation at company and sales manager level.

At least since 1998 there was an agreement to distribute the tenders for aerial rescue vehicles equally between the two companies involved. For this purpose, lists of the upcoming tenders from municipalities were exchanged and the orders were assigned accordingly. The company that was to be awarded the contract granted a discount of 5 to 8% on the list price, which was similarly high due to the cartel , while the losing company was only supposed to grant a discount of up to 3%.

For camouflage purposes, communication within the cartel was initially carried out via prepaid cell phones and correspondence via the private addresses of the sales managers. Communication has been via email since 2006 ; Terms from football were used for camouflage ; Cartel meetings were formulated as training dates , agreed discounts as game results.

The antitrust proceedings

Logo of the Federal Cartel Office

Since 2009, the German Federal Cartel Office, together with the Austrian Federal Competition Authority, has been investigating the receipt of an anonymous report and a voluntary report from the manufacturer Metz Aerials in relation to possible anti-competitive agreements between the companies involved. Between May 2009 and July 2010, four searches were carried out, two of which were carried out in cooperation with the federal competition authority in Austria (Rosenbauer).

In February 2011 the cartels were uncovered in the fire fighting vehicle market and made known to the public. In the first proceeding against the manufacturers of fire engines, the Federal Cartel Office imposed fines of € 20.5 million on the manufacturers Schlingmann, Rosenbauer and Ziegler by decision of February 10, 2011. There was still further investigation against Iveco Magirus fire protection technology, also in the area of ​​aerial rescue vehicles. In this proceeding, a fine of € 17.5 million was imposed on the manufacturer Iveco Magirus Brandschutztechnik by decision of July 27, 2011.

The complex of fire-fighting vehicles proceedings was finally concluded by the Federal Cartel Office in March 2012; On March 7, 2012, it imposed a further fine of € 30 million on the manufacturer Iveco Magirus Brandschutztechnik for its participation in the fire engine cartel.

Consequences

Fine proceedings

So far (as of March 2012) the Federal Cartel Office has imposed fines pursuant to Section 81 GWB in the amount of € 68 million against those involved in the cartel. The penalties from Ziegler, Schlingmann, Rosenbauer and the aerial rescue vehicle penalty from Iveco Magirus were accepted as part of a settlement procedure and no judicial review was necessary, so the notices have now become legally binding .

Iveco Magirus Brandschutztechnik has announced that it intends to take legal action against the fine in the fire engine proceedings.

The following fines were individually imposed:

Companies Fine fire trucks Fine aerial rescue vehicles Total amount of fines
Iveco Magirus fire protection technology € 30 million € 17.5 million € 47.5 million
Ziegler € 8 million - € 8 million
Schlingmann € 2 million - € 2 million
Rosenbauer with Metz Aerials € 10.5 million unpunished € 10.5 million

Metz Aerials GmbH has been exempt from punishment under the leniency program in the aerial rescue vehicle cartel. A fine was also imposed on the Swiss auditor as an assistant to the cartel.

According to its own information, Albert Ziegler GmbH & Co. KG filed for bankruptcy in August 2011 due to liquidity bottlenecks as a result of the cartel penalty . At the beginning of November 2011 insolvency proceedings were opened.

Criminal investigation

The competent public prosecutor's offices were informed about the cartel by the Federal Cartel Office. Appropriate proceedings were subsequently initiated against persons and companies involved in the cartel. In August 2011 there was a nationwide search of companies involved in the cartel and of municipal procurement companies, in which the public prosecutor's offices in Neuruppin, Osnabrück and Stuttgart had a total of 14 properties searched in eight federal states.

In addition to the accusation of anti-competitive agreements in tenders, which are punishable under Section 298 of the German Criminal Code, investigations are also being carried out with regard to possible corruption offenses about which the companies involved in the cartel may have received confidential information about the procurement procedures of municipal employees. The investigations of the Stuttgart public prosecutor's office continued, according to their own statements, at least until early summer 2013.

Claims for damages

Various municipalities are examining the assertion of claims for damages against the companies involved in accordance with Section 33 (3) and (4) GWB. The German Association of Cities and the Association of German Cities and Municipalities commissioned an expert opinion on possible financial damage to the municipalities and negotiated with the companies about a pool / fund for out-of-court compensation payments. The problem here, however, is the insolvency of Ziegler, which casts doubt on whether Ziegler could even pay money into a fund; for this reason, Ziegler is no longer involved in the report. Furthermore, Iveco Magirus Brandschutztechnik has not agreed to join the report. As a result, only Schlingmann and the Rosenbauer Group are involved in the report.

In addition, there is the antitrust problem for the municipalities of calculating a specific damage; the hypothetical market price is usually determined for this . The Association of Towns recommends claiming flat-rate damages of 15% based on the federal procurement manual.

With the determination of injury, the consulting firm was charging Mann & Associates from Hamburg commissioned the first data has collected from all municipalities, in order to ascertain the possible antitrust implications. The report should be presented at the end of August 2012. In November 2012, the first details of possible lump-sum compensation payments became known; the average amount should therefore be in the lower four-digit range. The cartelant Iveco-Magirus is now also considering participating in the settlement of the damage on the basis of the expert report.

Competitors who are not involved in the cartel are also examining possible claims for damages against the cartel members due to unlawfully lost orders.

In April 2012, the city ​​of Cologne announced that it would initially seek out-of-court damages against Iveco Magirus Brandschutztechnik due to the antitrust violations, and that later lawsuits have not been ruled out. In the event that the out-of-court solution within the pool fails (see above), the city of Erding has also announced that it will initiate model lawsuits. In the meantime, the city of Erding has accepted the compensation payment from the fund and is not contesting legal action.

In May 2013, the German Association of Cities, the German District Association and the Association of German Cities and Municipalities reached an out-of-court agreement with Schlingmann, Rosenbauer and Iveco Magirus Brandschutztechnik on compensation payments from a regulatory fund totaling around € 6.74 million. Based on the expert opinion, compensation for the cartel-related increase in prices from the fund will be paid to the affected municipalities for purchases in the years 2000 to mid-2004. Depending on the vehicle type, € 1,600 to € 2,200 compensation will be paid. The municipalities are free to join this model or, if necessary, to assert higher claims through the courts.

In September 2013, analogous to the fire trucks, an out-of-court agreement was reached in the area of ​​turntable ladder procurement. Affected communities that purchased vehicles between 2000 and 2007 will be compensated with compensation payments in three type classes between € 10,500 and € 16,000; a total of € 6.41 million is available.

The total amount available for compensation payments to those affected by cartels is therefore € 13.15 million. As of the beginning of 2014, many municipalities have already been compensated on the basis of the out-of-court solution for extinguishing vehicles that were too expensive.

In July 2014, the procedure for compensating damage in the area of ​​aerial rescue vehicles was largely completed. In the case of 391 aerial rescue vehicles, compensation was paid to the relevant procuring municipality.

Exclusion of tenders

The companies involved were also excluded from the procurement of future vehicles by numerous municipalities. The Lower Saxony Ministry of Economics, Labor and Transport stated in a recommendation for municipal vehicle buyers that the companies involved in the cartel can be viewed as unreliable under procurement law and can therefore be excluded from tenders.

In July 2011, however, the state of Berlin lifted the interim ban on companies involved in the cartel, as it considers the companies to be rehabilitated. Ziegler also tries to improve his position with the help of the Baden-Württemberg state government .

The passive attitude of the fire brigade associations was also criticized on the municipal side and demanded greater "clairaudience" in tenders in the future.

In December 2011, the manufacturers Rosenbauer, Metz Aerials, Schlingmann and Iveco Magirus Brandschutztechnik were recognized by Certification Bau e. V. (since 2012: Certification Bau GmbH ) with regard to their reliability under public procurement law and successfully certified the information in the bidder declaration. The test procedure is coordinated with the municipal umbrella organizations and compliance with the requirements for the bidder declaration is continuously monitored.

Organizational changes in the company

In almost all of the companies involved in the cartel, there were personnel and organizational changes in the company. Many people from the management and sales management have been relieved of their duties and replaced by new management staff. In addition, compliance systems have been installed in the perpetrators to prevent similar misconduct in the future and restore reliability under public procurement law (so-called "self-cleaning"). In order to confirm the self-cleaning measures, some companies have undergone certification (see above), which is intended to remove doubts about the reliability for future bidding processes.

In the course of Ziegler's insolvency, there were also further organizational changes as part of the planned restructuring. At Rosenbauer and Iveco Magirus Brandschutztechnik, previously separate subsidiaries were merged to form uniform providers.

literature

  • Bundeskartellamt: Case report on cartel proceedings against manufacturers of fire fighting vehicles, Az.B12 - 11/09 from February 10, 2011 ( online as PDF )
  • Bundeskartellamt: Case report on cartel proceedings against manufacturers of fire brigade turntable ladder vehicles, Az.B12 - 12/10 of July 27, 2011 ( online as PDF )
  • Norbert Portz: The test of reliability: fire brigade procurement cartel and future awards , in: Die Gemeinde SH 4/2011, pp. 98-102 ( online as PDF )

See also

Individual evidence

  1. Bundeskartellamt: Press release of February 10, 2011: Bundeskartellamt imposes fines of millions on manufacturers of fire fighting vehicles ( Memento of May 1, 2012 in the Internet Archive ), accessed on March 31, 2012.
  2. VDMA fire fighting technology: An overview of the German fire fighting technology industry  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF), accessed on March 12, 2012.@1@ 2Template: Dead Link / www.vdma.org  
  3. a b Bundeskartellamt: Case report B12 - 12/10 - Fire brigade turntable ladder vehicles , p. 1.
  4. VDMA Fire Brigade Technology : New registrations of fire fighting vehicles in Germany  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF), accessed on March 12, 2012.@1@ 2Template: Dead Link / www.vdma.org  
  5. Lower Saxony Ministry of Economics, Labor and Transport : Recommendations for municipal buyers of fire engines to check the reliability of bidders , p. 1.
  6. Bundeskartellamt: Press release of July 27, 2011: Fine of 17.5 million euros for collusion with fire service turntable ladders ( memento of May 6, 2012 in the Internet Archive ), accessed on March 31, 2012.
  7. ^ Website of Schlingmann GmbH & Co. KG ( Memento from July 30, 2013 in the Internet Archive )
  8. News March / 2011 from Empl: Empl not involved in price and quota agreements prosecuted under cartel law , accessed on March 8, 2012.
  9. ^ Josef Lentner GmbH: Press release of February 22, 2011 , accessed on March 8, 2012.
  10. a b Gimaex-Schmitz: Press release from February 2011: Statement on the antitrust proceedings  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF), accessed March 8, 2012.@1@ 2Template: Dead Link / www.gimaex.eu  
  11. see Tobias Lettl : Kartellrecht . 2nd edition, Verlag CH Beck, Munich 2007, ISBN 978-3-40655-624-1 , § 2, marginal number 80.
  12. a b Augsburger Allgemeine: The fire brigade cartel has to compensate municipalities , accessed on July 13, 2013.
  13. On the possibility of anonymous reporting in cartel law: Tobias Lettl: Kartellrecht . 2nd edition, Verlag CH Beck, Munich 2007, ISBN 978-3-40655-624-1 , § 11, marginal number 20.
  14. Federal Competition Authority : Activity Report 2010 , p. 43.
  15. cf. also for the details: OGH , decision of July 15, 2009, 16Ok7 / 09 ( online in the legal information system of the Republic of Austria ).
  16. Bundeskartellamt: case report B12 - 11/09 - fire engines , p. 1.
  17. a b Bundeskartellamt: Press release of March 7, 2012: Bundeskartellamt imposes a further fine of millions on manufacturers of fire fighting vehicles ( memento of March 9, 2012 in the Internet Archive ), accessed on March 31, 2012.
  18. UB Fire Brigade: Magirus rejects findings of the Cartel Office , accessed on March 10, 2012.
  19. see JUVE.de: Feuerwehrfahrzeug-Kartell: Erfurt law firm accompanies key witness Rosenbauer , accessed on March 31, 2012.
  20. on the criminal liability of aids in antitrust law: Court of the European Union ECJ, judgment of July 8, 2008 , Az. T-99/04, full text; Stephan Albrecht / Julie von dem Bussche: Brief commentary on EGC, judgment of July 8, 2008, case T-99/04 , in: EWiR 2008, pp. 489-490.
  21. feuerwehrmagazin.de: Insolvency proceedings opened ( memento of January 7, 2012 in the Internet Archive ), accessed on March 10, 2012.
  22. feuerwehrmagazin.de: feuerwehr-magazin.de: Public prosecutors investigate according to antitrust proceedings ( memento of April 19, 2012 in the Internet Archive ), accessed on March 31, 2012.
  23. feuerwehrmagazin.de: feuerwehrmagazin.de: Schlingmann confirms house search ( memento of August 2, 2013 in the Internet Archive ), accessed on March 31, 2012.
  24. UB fire brigade: Public prosecutor's office investigates - raid against fire protection companies on suspicion of bribery , accessed on March 10, 2012.
  25. ngz-online.de: City: bribery investigation run , accessed January 17, 2013.
  26. cf. Shirley Aunert-Micus: Commercial Private Law Volume 2 (section Antitrust Law). 1st edition, Verlag Vahlen, Munich 2010, ISBN 978-3-8006-4003-4 , marginal number 1025f.
  27. a b Augsburger Allgemeine: The tough fight against the fire service cartel , accessed on March 10, 2012.
  28. See Schleswig-Holstein Cities Association: Circular No. 150/2011 of November 11, 2011 - Current state of affairs on the “Fire Brigade Procurement Cartel” , p. 1.
  29. cf. on the problem of enforcing an antitrust claim for damages Till Schreiber: Strategic considerations for the judicial enforcement of antitrust claims for damages  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; online at www.carteldamageclaims.com; PDF; 138 kB).@1@ 2Template: Dead Link / www.carteldamageclaims.com  
  30. ^ A b ksta.de: Fire brigade becomes victim of fraud , accessed on April 19, 2012.
  31. sueddeutsche.de : After some hesitation , accessed on April 19, 2012.
  32. a b sueddeutsche.de: Price upon request , accessed on August 7, 2012.
  33. a b hna.de: Feuerwehrgeräte-Kartell: Three manufacturers before agreement on compensation , accessed on November 24, 2012.
  34. Merkur: Cartel fraud involving fire engines: Model plaintiff accepts peanuts , accessed on July 13, 2013.
  35. Press release of the German Association of Cities of May 13, 2013: Fire Brigade Procurement Cartel : Central municipal associations and companies agree out-of-court settlement of claims , accessed on July 13, 2013.
  36. a b Circular from the Federal Association of Local Central Associations of September 19, 2013.
  37. retter.tv: Feuerwehrkartell: Stuttgart remains seated on the damage caused by overpriced fire engines , accessed on February 6, 2014.
  38. nwzonline.de: Fire Department: City receives no money , accessed on February 6, 2014.
  39. Lademann & Associates: Cooperative claims settlement also successfully completed in the turntable ladder cartel (PDF), accessed on September 22, 2014.
  40. see e.g. B. Welt Online: Berlin wants to buy a fire extinguisher from cartel offenders , accessed on March 31, 2012.
  41. On the legal question of the excludability of cartelists, see also: Roland M. Stein, Pascal Friton, Anna Huttenlauch: Antitrust violations as grounds for exclusion in the award procedure , in: Wirtschaft und Competition (WuW) 2012, pp. 38–51.
  42. Lower Saxony Ministry of Economics, Labor and Transport: Recommendations for municipal buyers of fire engines to check the reliability of bidders , p. 2f.
  43. Berliner Morgenpost : Doing business with the king of the fire service cartel? , accessed November 29, 2011.
  44. Ziegler: Press release of November 25th, 2011: State government strengthens Ziegler's back  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 24 kB), accessed on March 31, 2012.@1@ 2Template: Toter Link / www.ziegler.de  
  45. Kreiszeitung Syke : “Why are the fire service associations silent?” , Accessed on March 8, 2012.
  46. Press release in the Procurement Information System (VIS) of the DStGB: Fire Brigade Cartel : Procurement Reliability through Certification Bau e. V. successfully checked  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , accessed March 21, 2012.@1@ 2Template: Toter Link / www.dstgb-vis.de  
  47. Zert-bau.de: Suitability VOL - fire fighting vehicles , accessed on July 13, 2013.
  48. z. B. at Ziegler, see Ziegler's homepage: ZIEGLER compliance and corporate culture , accessed on March 31, 2012.
  49. see e.g. B. the explanations of the German Association of Cities and Municipalities: dstgb.de: fire brigade procurement cartel at the expense of the cities and municipalities  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , accessed September 7, 2012.@1@ 2Template: Toter Link / www.dstgb.de  
  50. See Schleswig-Holstein City Association: Circular No. 150/2011 of November 11, 2011 - Current status on the “Fire Brigade Procurement Cartel” , p. 1f.