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OFT welcomes early resolution agreements and agrees over £116m penalties

Investigations continue against other supermarkets and a dairy processor

170/07    7 December 2007

Following the OFT's Statement of Objections (SO) of 20 September 2007 which provisionally found evidence of collusion between certain large supermarkets (Asda, Morrisons, Safeway, Sainsbury's and Tesco) and dairy processors (Arla, Dairy Crest, Lactalis McLelland, The Cheese Company (formerly Glanbia Foods Limited) and Wiseman) on the retail prices of some dairy products, certain of these parties have now admitted involvement in anti-competitive practices and have agreed to pay individual penalties which, combined, come to a maximum of over £116 million.

With a view to maintaining strong and effective competition law, the OFT will continue with its case against the remaining parties.

The SO set out the OFT's provisional findings that certain large supermarkets and dairy processors have colluded to increase the retail prices of one or more of liquid milk, value butter and UK produced cheese. The OFT's provisional findings were that the collusion took place through the sharing of commercially sensitive information in 2002 and, in some cases, in 2003. Details on the scope of the OFT's infringement allegations are set out below.

The OFT has now concluded early resolution agreements with Asda, Dairy Crest, Safeway (in relation to conduct prior to its acquisition by Morrisons), Sainsbury's, The Cheese Company and Wiseman based upon the provisional findings made in the SO. These parties have all admitted involvement in certain of the anti-competitive practices identified by the OFT in the SO and have undertaken to co-operate fully with the OFT in its investigation, including providing further evidence as far as reasonably possible.

These parties have accepted a liability in principle, and will pay penalties which amount to a maximum of over £116 million. However each party will receive a significant reduction in the financial penalty that would otherwise have been imposed on it, on condition that it continues to provide full co-operation.

The OFT has also taken into account information provided by the parties involved in the early resolution discussions which demonstrated the pressures they were under at this time to support dairy farmers.

The OFT is very pleased that the early and constructive cooperation of Asda, Dairy Crest, Safeway, Sainsbury's, The Cheese Company and Wiseman, has enabled some of this case to be resolved effectively and swiftly, which will significantly reduce the costs of pursuing the investigation to the OFT and to the businesses concerned. This case demonstrates the flexible approach the OFT is prepared to take to reduce the burden of investigations, while maintaining strong and effective competition law enforcement.

Arla had previously applied to the OFT for leniency and will receive complete immunity from financial penalty if it continues to fully co-operate.

The OFT will continue with its case against Lactalis McLelland, Morrisons and Tesco. These parties have an opportunity to make representations on the OFT's provisional findings. The OFT will carefully consider any representations, and the evidence in the case as a whole before reaching any final decision.

NOTES

On 20 September 2007, the OFT issued a Statement of Objections, setting out its provisional findings to: Asda, Morrisons, Safeway, Sainsbury and Tesco, as well as dairy processors Arla, Dairy Crest, Lactalis McLelland, The Cheese Company and Wiseman.

The SO made the following infringement allegations:

• Arla is alleged to have facilitated the exchange of commercially sensitive information between certain retailers in respect of the retail price of certain liquid milk products in 2002 and fresh liquid milk 2003.
• Dairy Crest is alleged to have facilitated the exchange of commercially sensitive information between certain retailers in respect of the retail price of UK produced cheese in 2002 and in respect of fresh liquid milk and value butter in 2003.
• Wiseman is alleged to have facilitated the exchange of commercially sensitive information between certain retailers in respect of the retail price of fresh liquid milk in 2003 only.
• The Cheese Company (formerly Glanbia Foods Limited) is alleged to have facilitated the exchange of commercially sensitive information between certain retailers in respect of the retail price of UK produced cheese in 2002 only.
• Lactalis McLelland is alleged to have facilitated the exchange of commercially sensitive information between certain retailers in respect of the retail price of UK produced cheese in both 2002 and 2003.
• Asda is alleged to have indirectly disclosed to and/or exchanged with certain other retailers commercially sensitive information in respect of the retail price of certain liquid milk products in 2002, fresh liquid milk in 2003 and UK produced cheese in both 2002 and 2003.
• Morrisons is alleged to have indirectly disclosed to and/or exchanged with certain other retailers commercially sensitive information in respect of the retail price of certain liquid milk products in 2002 only.
• Safeway is alleged to have indirectly disclosed to and/or exchanged with certain other retailers commercially sensitive information in respect of the retail price of certain liquid milk products in 2002, fresh liquid milk in 2003, UK produced cheese in 2002 and value butter in 2003. The OFT's provisional findings in respect of Safeway relate to conduct that occurred prior to its acquisition by Morrisons.
• Sainsbury's is alleged to have indirectly disclosed to and/or exchanged with certain other retailers commercially sensitive information in respect of the retail price of certain liquid milk products in 2002, fresh liquid milk in 2003 and UK produced cheese in both 2002 and 2003.
• Tesco is alleged to have indirectly disclosed to and/or exchanged with certain other retailers commercially sensitive information in respect of the retail price of certain liquid milk products in 2002, fresh liquid milk in 2003, UK produced cheese in both 2002 and 2003 and value butter in 2003.

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