On 30 January 2014, the Paris Court of Appeal confirmed a
decision of the French Competition Authority ("FCA")
imposing fines totalling € 367.95 million on four laundry
detergent manufacturers, Colgate Palmolive, Henkel, Procter &
Gamble and Unilever, for illegal price-fixing and for coordinating
their commercial and promotional strategies between 1997 and 2004.
Among the many grounds of appeal, the Court of Appeal dismissed
arguments in relation to the principle ne bis in idem and
the inapplicability of the 2011 French Guidelines on fines.
On 8 December 2011, the FCA adopted a decision imposing fines
totalling € 367.95 million on four manufacturers for
their participation in a price-fixing cartel, for the illegal
exchange of confidential information and for collusion concerning
their promotional activities on the laundry detergent market
between 1997 and 2004. The products concerned by the cartel
included laundry detergent in the form of powder, liquid and
tablets sold to large retail groups. The investigations were
triggered by an application for immunity made by Unilever in 2008
pursuant to the French Leniency Notice (see VBB on Competition Law,
Volume 2011, No. 12, available at
In its judgment, the Court of Appeal first dismissed claims
brought by Henkel and Procter & Gamble that challenged the
FCA's decision for violating the ne bis in idem
principle. According to appellants, the FCA should have taken
account of the European Commission's April 2011 decision
finding them to have infringed Article 101 TFEU for operating an
illegal cartel on the laundry detergent market in eight Member
States, including France. In addition, they argued that the conduct
at issue in the French and the EU proceedings constituted a single
continuous infringement and as a result, that the French
proceedings should have been dropped or, at the very least, that
the amount of the fines imposed by the FCA should reflect the fact
that the Commission had already fined the complainants on the same
In dismissing this aspect of the appeals, the Court of Appeal
underlined the fact that the FCA and the Commission had adequately
coordinated their actions, as the former had inquired with the
latter on whether or not the proceedings at national and EU level
were distinct. The Commission had responded by letter in April 2010
that the infringements pursued by each authority were distinct and
that the FCA was in a better position to investigate the alleged
infringement on the French territory.
In addition, the Court of Appeal found that, in any event, the
ne bis in idem principle did not apply to the case as the
-French and the EU proceedings concerned separate cartels as they
did not share the same facts and the same participants or protect
the same legal interest. The Court of Appeal found that (i) the
practices investigated by the French and the EU proceedings
differed, as the former concerned laundry detergents in the form of
powder, liquid and tablets whereas the latter only related to
laundry detergent in the form of powder; (ii) the cartel in the
French proceedings lasted from 1997 to 2004 while that in the EU
proceedings lasted from 2002 to 2005; (iii) Colgate Palmolive was
only concerned by the French proceedings and not by the EU
proceedings; and (iv) the Commission found that the companies
operated a cartel aimed at indirectly fixing prices as opposed to
the FCA finding that the companies directly fixed prices. As a
result, the Court of Appeal dismissed the claim based on the ne
bis in idem principle.
Concerning the amount of the fines, the Court of Appeal
dismissed the claims of the companies that the fines imposed by the
Commission for operating an illegal cartel in eight member States
(including France), and the way they were calculated, should have
been taken into account by the FCA when calculating the amount of
the fine to be imposed. Thus, for instance, the fact that the
Commission calculated the basic amount of the fine for Henkel based
on 16% of its turnover whereas the FCA based it on 20% did not
violate the principle of equal treatment as the facts of the cases
Finally, the Court of Appeal rejected the companies'
argument that the FCA had breached the principle of
non-retroactivity by relying on the 2011 French Guidelines on fines
for events which took place between 1997 and 2004. The Court of
Appeal held that the provisions of the guidelines merely codified
already established practices and simply transcribed the legal
framework of the French Commercial Code.
The Court of Appeal accordingly dismissed the appeals in their
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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