European Union: Fine In Phosphates Cartel Case Confirms Need To Carefully Evaluate European Commission Settlement Proposals

Last Updated: March 3 2017
Article by Antitrust Watch

Authored by: Michel Roseau and Michael Vaz D'Almeida

On January 12, 2017, the Court of Justice of the European Union ("CJEU") dismissed Roullier group's appeal and thereby confirmed a fine of €59,850,000 imposed by the European Commission ("EC") in the phosphates cartel case.1 This blog post summarizes the decision and discusses the CJEU's reasoning, which provides valuable guidance to a firm in a cartel investigation that is evaluating a settlement proposal from the EC. In particular, the firm must weigh the fact that, pursuant to the CJEU's decision, the EC may ultimately impose fines greater than those it proposed in a rejected settlement offer, even if it determines that the firm's cartel participation was significantly less than it thought at the time of settlement discussions.

I. The Phosphates Cartel Case: Long-Term and Serious Anticompetitive Practices

In 2010, the EC imposed fines amounting to €175,647,000 on thirteen companies that had participated in a phosphate price-fixing cartel and divided the market for phosphate used in animal feed. These companies operated both throughout Europe and in various individual European states for over thirty years. Among these companies, only two–Timab Industries SA and Compagnie Financière et de Participation Roullier (both Rouiller group undertakings)–decided not to settle with the EC.2

The CJEU, and previously the General Court3, confirmed the EC's decision asserting that, from 1993 to 2004, Roullier group participated in an anticompetitive agreement prohibited by article 101 of the Treaty on the Functioning of the European Union ("TFEU"). The EC's investigations also revealed that the thirteen companies shared sales quotas for regions and customers, coordinated prices and, in some cases, agreed on the conditions of sale.

II. Termination of Settlement Discussions With Some But Not All Undertakings

The phosphates cartel is the first case in which the EC entered into a "hybrid" settlement by settling with some but not all alleged infringers and followed both settlement and ordinary procedures.

Pursuant to EU Regulation n° 773/2004,4 the EC proposed a settlement to the thirteen accused infringers. Pursuant to the Commission Notice on the conduct of settlement procedures, the EC informed each company of "the essential elements taken into consideration so far, such as the facts alleged, the classification of those facts, the gravity and duration of the alleged cartel, the attribution of liability, an estimation of the range of likely fines, as well as the evidence used to establish the potential objections."5

According to the EC, the anticompetitive behavior occurred between 1978 and 2004. On that basis, the EC estimated a range of fines from €41 to €44 million based on Roullier group's participation in the cartel.6 Unlike the other undertakings taking part in the cartel, Roullier group rejected the settlement offer, partially disputed the statement of objections and, in the alternative, challenged the amount of the fine.

III. Unfortunate Outcome: A More Substantial Fine Imposed

As a consequence of the termination of settlement discussions with Roullier group, the EC was required to follow its ordinary procedure rules.

Although Roullier group succeeded in demonstrating that its participation in the cartel did not begin until 1993, which reduced the duration of its participation from 26 to 11 years, the EC imposed a fine of €59,850,000 on Roullier group–substantially more than the maximum fine the EC had offered during settlement discussions.7

Roullier group's appeals before the General Court and the CJEU have been rejected and the amount of the EC's fine has been confirmed. The CJEU specifically held that the EC could impose a fine larger than the upper end of a range of potential fines it had proposed during settlement discussions.

In retrospect, Roullier group was faced with something of a Hobson's choice: accept the EC's findings (including as to the duration of Roullier group's cartel participation) and the EC's proposed fine range, or challenge the EC's findings and in so doing take the chance that the EC might impose an even greater fine. As things turned out, the EC imposed–and the CJEU confirmed–a fine larger than that the EC had proposed during settlement discussions, even though it determined that Roullier group had not participated in the cartel for its entire duration. In short, the Roullier group was required in 2017 to pay a fine between 27% and 32% higher than it could have paid by settling with the EC in 2010.

Companies facing settlement offers from the EC should balance the range of potential fines with the consequences of challenging the EC's findings, such as the loss of fine reductions or the risk of private damages actions. Even if companies are sure that their role in the challenged conduct was far less than the EC suspects, they should consider these consequences in order to limit the financial costs related to their alleged anticompetitive practices.


1 EUCJ, January 12, 2017, Timab Industries SA and Compagnie Financière et de Participation Roullier (CFPR) v. Commission, C-411/15P.

2 EC, July 20, 2010, Animal Feed Phosphates, Case COMP/38866.

3 General Court, May 20, 2015, Timab Industries and Compagnie Financière et de Participation Roullier (CFPR) v. Commission, T-456/10.

4 UE Regulation n° 773/2004 of April 7, 2004 relating to the conduct of proceedings by the EC, Article 10 bis.

5 Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases, July 2, 2008, n° 2008/C 167/01, points 16 and 17.

6 « Transiger ou ne pas transiger? Telle est la question... », January 17, 2017, Laure-Anne Willermoz, LamyLine.

7 EC, July 20, 2010, Animal Feed Phosphates, Case COMP/38866.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
22 Aug 2018, Webinar, New York, United States

On July 1, 2018, new regulations from California’s FEHC went into effect, clarifying protections from national origin discrimination.

5 Sep 2018, Seminar, New York, United States

This seminar will discuss a variety of topics concerning the responsibilities and conduct of gatekeepers and will provide practical advice dealing with the government’s increased policing of the activities of gatekeepers.

13 Sep 2018, Speaking Engagement, New York, United States

Employment partners Tim Long and Erin Connell will be participating in PLI’s Cutting-Edge Employment Law Issues 2018: The California Difference.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions