On 15 July 2015, the General Court ("GC") adopted three judgments partly annulling the decisions adopted by the EU Commission in 2009 and 2010 in the heat stabiliser cartels case.
In its 11 November 2009 decision, the Commission found that a number of companies had participated in price-fixing, market-allocation and customer-sharing cartels in relation to two categories of heat stabilisers that are added to PVC products in order to improve their thermal resistance (See VBB on Competition Law, Volume 2009, No. 11, available at www.vbb.com). The Commission fined 24 companies, including the four companies of the Akzo group, which filed one of the appeals dealt with by the GC's recent judgments, and GEA Group AG, which filed the two other appeals.
The Akzo companies based their appeal on five grounds, of which only two were upheld by the GC. First, the GC found the Commission had unlawfully disregarded the applicable limitation periods in imposing fines on certain Akzo companies. Pursuant to Article 25 of Regulation 1/2003, the Commission's right to impose sanctions is time-barred five years after the end of the infringement if no investigative measure was undertaken in the meantime. However, the infringements for which Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV were held liable ended on 28 June 1993, i.e., more than five years before the Commission started its investigation in early 2003. The GC found that the limitation period can be pleaded by every company separately, regardless of the fact that parent company Akzo Nobel NV could not benefit from it (since its infringement only ended in March 2000). As a result, the GC annulled the fines imposed on Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV.
The GC also found that the Commission had breached the principle of good administration and the principle that decisions must be adopted within a reasonable time. In its decision, the Commission acknowledged the excessive duration of the administrative procedure and as a result reduced by 1% the fine of all the companies concerned with the exception of the Akzo companies. The GC did not accept the Commission's explanation that the Akzo group could not benefit from this fine reduction since its appeals against several procedural decisions had delayed the administrative procedure. The GC found this justification incompatible with the principle of effective access to judicial remedies. Accordingly, the GC decided that the remainder of the fines imposed on the Akzo group should be reduced by 1%.
As indicated above, the GEA Group filed two appeals against the Commission's decisions in the heat stabilisers case. The first appeal was directed against the 11 November 2009 decision and was entirely dismissed by the GC. However, the other appeal, filed against the Commission decision of 8 February 2010, was upheld.
The Commission adopted the 2010 decision to rectify the 2009 decision, which had imposed on one of the GEA Group's subsidiaries at the time of the infringement a fine exceeding the 10% turnover limit set out Article 23(2) of Regulation 1/2003. In the 2010 decision, the Commission reduced ACW's fine, without amending the fine imposed on GEA Group or its other subsidiary at the time, CPA.
The GEA Group appealed against the 2010 decision, arguing a breach of its rights of defence since it had not been heard prior to the adoption of the decision and had not had access to the file. The GC noted that the GEA Group had indeed not been heard nor given access to the file, but considered that this could only constitute a breach of its right of defence if it could prove that it could have better defended itself had these breaches not been committed. On the facts, the GC concluded that the breach of the GEA Group's right of defence had indeed had an impact on its ability to defend itself during the administrative procedure leading to the adoption of the 2010 decision. In particular, the GC found that the GEA Group could have debated the obligations of the Commission on the determination of joint responsibility of companies that used to form a single undertaking, since this legal issue had not yet been settled at the time of the administrative procedure. In addition, the GC noted that the GEA Group could have argued that, following the 2010 decision, the fine imposed on it would be higher than the total fine imposed on its subsidiaries ACW and CPA, in spite of the fact that the GEA Group was only held liable as a parent company of these subsidiaries and was not directly involved in the infringements. Finally, the GC considered that, absent any breach of its rights of defence, the GEA Group could have initiated a debate on whether the parent company should benefit from the same fine reductions as its subsidiary.
As a result, the GC annulled the Commission's decision of 8 February 2010 insofar as it concerns the GEA Group.
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.