On 27 September 2012, the General Court ("GC") handed down sixteen judgments in the Dutch bitumen cartel case. The Court dismissed the appeals of fourteen undertakings in their entirety, while it partially annulled the Commission's 2006 decision in relation to two of the cartel participants, Shell and Ballast Nedam Infra BV. The Court reduced the fine imposed on Shell from € 108 million to € 81 million, finding that the European Commission had not provided sufficient proof that Shell had acted as leader of the cartel. The Court also capped the liability of one member of Ballast Nedam group at € 3.45 million, but did not alter the original figure of € 4.65 million imposed on other members of the group.
In the decision under appeal, the Commission found that a large number of companies had participated in a single and continuous infringement of Article 101 TFEU by regularly fixing, for the period 1994 to 2002, prices for the sale of road pavement bitumen in the Netherlands.
In Shell's appeal, the GC reduced the fine imposed by the Decision from € 108 million to € 81 million, holding that the Commission had failed to adduce sufficient evidence to establish Shell as the instigator and leader of the cartel.
The Court carried out a detailed assessment of whether the Commission had sufficiently established that Shell Nederland Verkoopmaatschappij ("SNV", the legal entity of the Shell group responsible for marketing bitumen in the Netherlands) had played the role of instigator of the cartel, a role which requires the persuasion or encouragement of other undertakings. The Court examined the main basis for this assertion by the Commission, which was evidence allegedly demonstrating that Shell was at the origin of a preferential rebate scheme. The Court found that, although the evidence relied upon by the Commission showed that Shell had made such propositions, this evidence was insufficient to prove that it had done so on its own initiative or whether it had been at the behest of another cartel participant, Koninklijke Volker Wessels Stevin (KWS).
In addition, the Commission had relied on five types of conduct by Shell in order to establish that Shell had been one of the leaders of the cartel, namely: the role played by Shell between 1994 and 1995 in negotiations with KWS on behalf of suppliers; the fact that, from 1996, Shell decided in advance with KWS to discuss whether or not to hold a meeting between the suppliers and large road builders; Shell's prominent role in pre-meetings with suppliers; Shell's major role as spokesperson for suppliers during meetings with large road builders, and, finally, its role in monitoring and implementing the cartel. The Court concluded that, although it was clear that Shell played a particular role at the beginning of the cartel, the Commission had failed to sufficiently establish that Shell played the role of leader from the time that the cartel operated in a multilateral manner.
Therefore, in light of these considerations, the Court held that the increase in the basic amount of the fine imposed on Shell on account of its purported leadership role must be set aside, thereby reducing the fine to € 81 million.
In the appeal of Ballast Nedam Infra, the Court reduced the fine from € 4.65 million to € 3.45 million on the basis of the infringement of the rights of the defence with regard to the adequacy of the Statement of Objections ("SO"). This was due to a failure on the part of the Commission to clearly state in the SO that it intended to hold the applicant liable for the infringement in its capacity as a parent company for the conduct of its wholly-owned subsidiary, BNGW, during the period 21 June 1996 to 30 September 2000. The Court therefore held that Ballast Nedam Infra was prevented from effectively exercising its rights of the defence, as it was unable to deduce from the SO that the Commission intended, in its final decision, to impute liability for the infringement to the parent company, based on the presumption of the exercise of decisive influence. Accordingly, the Court annulled the relevant part of the decision imputing liability to Ballast Nedam Infra for the contested period and reduced the fine imposed.
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