UK: Mavroghenis, Aliende Rodriguez And Abram Author ‘EU: Cartels And Leniency' Chapter For The European, Middle Eastern And African Antitrust Review 2017

Partner Stephen Mavroghenis, counsel Elvira Aliende Rodríguez and associate Laura Abram (all Brussels-Antitrust) contributed the "EU: Cartels and Leniency" chapter to Global Competition Review's The European, Middle Eastern and African Antitrust Review 2017.

The standout case of the past year has undoubtedly been the General Court's annulment of the European Commission's decision in Air Cargo.1 This chapter considers how the procedural irregularities in the decision led to this rare outcome and asks what is next for the Commission, the airlines, and the numerous damages claimants.

We also look at cases and decisions relating to key stages of the Commission's administrative procedure before considering substantive developments and notable cases on fines, including:

  • the Cement cases,2 in which the Court of Justice of the European Union (CJEU) scrutinised the Commission's procedural conduct and confirmed the requirements the Commission must satisfy in order to adopt requests for information by decision under article 18(3) of Regulation 1/2003;
  • the CJEU's ruling in DHL confirming that the Commission does not serve as a 'one-stop shop' for leniency;3
  • the CJEU's judgment in AC-Treuhand,4 which established liability for cartel facilitators and the subsequent cases of ICAP5and Eturas,6 which extend this principle to 'hub and spoke' arrangements. We also discuss VM Remonts;7
  • InnoLux and Guardian, which assess whether the Commission should include captive sales in the calculation of a company's fine;8 and
  • fines in settlement cases following the Société Générale fining saga.9

Air Cargo: where to go from here?

The Air Cargo appeals stemmed from a 2010 Commission decision which found that 21 carriers had participated in a global cartel between 1999 and 2006 in respect of fuel surcharges, security surcharges and non-commissioning on surcharges for the transport of cargo. The appeals led to the annulment of the decision in which the Commission imposed significant fines of €799 million.

The General Court annulled the decision on procedural grounds, finding an irreconcilable contradiction between the grounds of the decision and the operative part.

The grounds of the decision alleged a single and continuous infringement in respect of a worldwide cartel sustained by a single network of bilateral and multilateral contacts concerning the surcharges, whereas the operative part, in articles 1 to 4, split the infringement along geographic and temporal lines. Only 11 of the 21 carriers to whom the decision was addressed were mentioned in all four articles of the operative part. The remaining 10 featured in some but not all.

The General Court found it impossible to reconcile the conclusion that there had been a single and continuous infringement in which all carriers had participated in respect of the charges on all routes with the absence of certain addressees of the decision from some of articles 1 to 4. Consequently, the General Court held that the operative part of the decision was not clear and unequivocal and thus the Commission had failed in its duty to state reasons. As a result, the parties' rights of defence were infringed as it was not possible for the airlines to ascertain with certainty the scope of the infringement for which they had been held liable.

Given this fundamental procedural flaw, the General Court did not consider it necessary to address arguments on substance. Nonetheless, it identified preliminary inconsistencies within the grounds of the decision that undermined the finding of a single and continuous infringement.10

This finding impacts the next steps the Commission may take. The Commission decided not to appeal the General Court's ruling, and may favour instead to re-adopt its decision and correct the identified flaws. However, given that the General Court also identified certain internal inconsistencies, were the Commission to re-adopt the decision, it remains to be seen how the Commission would address satisfactorily the criticisms identified by the General Court.

Significant damages claims followed the 2010 decision. In light of the pending claims, carriers emphasised the importance of the operative part being clear and unequivocal. National courts hearing damages actions are bound by the Commission's finding of liability in the operative part, which also determines the addressees from which an addressee that is held jointly and severally liable for an infringement will be able to seek a contribution.11The General Court sympathised with the applicants' concerns in this regard.12

Many of those claims are now on hold pending possible re-adoption of a decision by the Commission. The time period is unknown but given that any new decision may well be subject to appeal, which would further delay the damages actions, compensation for harm suffered in the early 2000s, to the extent that it can be proven, may still be many years away.

Importantly, there are two airlines, Qantas and British Airways, against which the decision is still in force in whole or in part: indeed Qantas did not appeal the Commission's decision and British Airways received only a partial annulment.13 British Airways has since appealed to the CJEU for full annulment of the decision.14 Depending on the outcome of that appeal and pending possible re-adoption of the decision against the other carriers, there could be a number of different decisions relating to the same conduct. It will be intriguing to see how national courts attempt to reconcile multiple judgments. Ultimately, this may be a question for the European courts in Luxembourg.

The Cement cases: the requirement for concrete reasons for requesting information

On 10 March 2016 the CJEU confirmed that the statement of reasons of a Commission decision requesting information from companies must be appropriate and disclose the purpose of the request so that the company being investigated is able to understand clearly and unequivocally the information that the Commission requires it to provide.

In October and November 2008, the Commission conducted dawn raids at a number of companies active in the cement industry. In March 2011, it sent these companies suspected of cartel infringement individual requests for information by decision under article 18(3) of Regulation 1/2003. The questionnaires attached to the decisions included between 78 and 94 pages of questions.

Article 18(3) of Regulation 1/2003 requires a decision requesting information to 'state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided'. The company to which the decision is addressed must be able to understand fully its cooperation duty and at the same time its rights of defence must be protected. Should the Commission's request for information be too broad, these rights risk being infringed.

In June 2011, the addressees of the decisions brought an action before the General Court seeking to annul the article 18(3) request for information decisions on the basis that the Commission had failed to inform the parties why the information sought was required. The General Court dismissed the applications. The General Court held that the Commission did not need to disclose the preliminary evidence at its disposal, but it must have enough evidence to justify the information requests. The General Court did observe, however, that the statement of reasons in the decisions was 'formulated in very general terms which would have benefited from greater detail and [warranted] criticism in that regard.'15 In March 2016, the CJEU set aside the General Court's findings on the basis that

[t]he questionnaire [...] requires the disclosure of extremely extensive and detailed information relating to a considerable number of transactions, both domestic and international, in relation to twelve Member States over a period of ten years. However, the decision at issue does not disclose, clearly and unequivocally, the suspicions of infringement which justify the adoption of that decision and does not make it possible to determine whether the requested information is necessary for the purposes of the investigation.16

The CJEU objected to the very general terms in which questions were drafted, which did not allow the parties to determine which information to provide. The companies were not informed of the products which the Commission considered the infringement concerned, only that the Commission was investigating a possible infringement within the cement industry in the EEA that concerned restrictions on imports, market-sharing and price coordination practices.

In the judgments, the CJEU helpfully distinguishes between the higher level of reasoning required to justify request for information decisions compared to the lower level of detail required in dawn raid (inspection) decisions.17 The difference takes into account that dawn raids are conducted at a very preliminary stage in the Commission's investigation whereas requests for information should be used by the Commission to build on an already established picture of infringement.

The judgments place the Commission on a shorter leash when detailing requests for information, preventing unrestricted and unwarranted inquisitions. These judgments are a welcomed limitation of the investigatory powers of the Commission in this respect. Anecdotally, in July 2015 while the appeals to the CJEU were pending, the Commission withdrew its case on the basis that the information at the Commission's disposal did not allow it to conclude with certainty that there had been an infringement of competition law.18

DHL: the increasing cost of leniency

In 2012, DHL brought a claim before the Tribunale Amministrativo Regionale (TAR) per il Lazio (Regional Administrative Court for Lazio, Italy) alleging that it had been wrongly fined by the Italian Competition Authority for its participation in a cartel in the road freight sector. DHL argued that because of its immunity application made to the European Commission and a summary application made to the Italian Competition Authority it should have been granted immunity from fines in the case in Italy.19 The TAR Lazio rejected DHL's appeal on the basis that the different leniency programmes at EU and member state level are autonomous and independent, and DHL should not have relied on assurances given by the Commission that it could rely on its immunity application in the case before the Italian Competition Authority. DHL subsequently appealed to the Italian State Council, which referred several questions to the CJEU on the interplay between the Commission's leniency programme and those of member states.

In June 2007, DHL made a leniency application to the Commission reporting cartel behaviour in the international freight forwarding sector in Italy. The Commission granted DHL conditional immunity for the entire sector (air, sea and road). Ultimately, however, the Commission pursued the case in respect of air only, leaving it open to member state competition authorities to pursue the other aspects of the alleged anticompetitive conduct. DHL also made a summary application to the Italian competition authority, in July 2007. That application contained specific facts about air and sea only. It supplemented its application in June 2008 with information about road. In the interim, two other companies, Schenker and Agility, had submitted information about road. The Italian Competition Authority investigated and found an infringement in respect of road. It granted immunity to Schenker, a 50 per cent fine reduction to Agility (in second place) and a 49 per cent reduction to DHL (in third place). In its appeals to the TAR Lazio and the Italian Council of State, DHL claimed that the Italian Competition Authority should have taken into account the application DHL made to the Commission when it received the summary application and that doing so would have given it priority over Schenker and Agility. The Italian Council of State referred the following questions to the CJEU:

  • Are instruments adopted in the context of the ECN, in particular, the ECN Model Leniency Programme, binding on national competition authorities?
  • Is there a legal link between an application made to the Commission and an application made to a national competition authority such that the application made to the national competition authority must be considered in light of the application to the Commission?
  • Can a summary application to a national competition authority be used only by the immunity applicant or can a Commission leniency applicant also submit a summary application?

In answer to the first question, the CJEU confirmed that EU instruments, such as the ECN Model Leniency Programme, do not impose obligations and have no binding authority on national competition authorities.20 In answer to the second question, the CJEU found there to be no legal nexus between the application submitted to the Commission and the summary application made to the national authority. The CJEU emphasised the autonomy of leniency programmes and found that this autonomy would be called into question if there were a legal link between applications made under one programme and applications made under another.21 In answer to the third question, the CJEU outlined that a national authority is not prevented from accepting an immunity application where a fine reduction, as opposed to a full immunity application, is sought from the Commission.22 The fact that an entity does not receive full immunity from the Commission, but seeks it from the national authority, will not preclude a claim.

The uncertainty created by the lack of harmonisation of the leniency regime and the risks associated with the requirement for parallel submissions may result in firms rethinking whether to engage in the procedure. Any doubts may be compounded by the rise in follow-on damages claims, particularly in anticipation of the implementation of the Damages Directive in member states by the end of 2016.23 Given the requirements of the Leniency Notice and the result that leniency applications often involve an admission of guilt, it is as such almost impossible for applicants to appeal the substance of infringement decisions. Where an undertaking received immunity, there is also no fine to appeal. Unless a leniency applicant appeals on procedural grounds, the infringement decision is likely to become binding against it first, making it a key target in damages claims. The Damages Directive considers actual loss, loss of profit and interest to be recoverable and thus the sums claimed are likely to be considerable. The potential pitfalls of parallel regimes and the exposure to civil actions means ironically, leniency may now come at an increasing cost.24

The key takeaway for companies that discover that they have been engaged in cartel behaviour is that there is no 'one-stop shop' for leniency.25 Companies will need to consider quickly which jurisdictions are affected and submit concurrent leniency applications; they must not rely on an application made to the Commission to bolster any applications made before national competition authorities.

Cartel facilitators – where to draw the line? AC-Treuhand, ICAP, Eturas and VM Remonts

In October 2015, the CJEU confirmed in AC-Treuhand that cartel facilitators can be held liable along with cartelists. The judgment puts the conduct of firms who supply information, aggregate data, operate online platforms and operate as trading intermediaries under heightened scrutiny.

The judgment confirmed that cartel facilitators can be held equally liable for a cartel as the cartel's participants even though they operate on a separate market.26 However, some questions remain as to the precise standard against which cartel facilitators' behaviour should be assessed. The CJEU considered the test in Anic to be the appropriate legal standard and found that AC Treuhand's behaviour, including attending meetings at which anticompetitive agreements were concluded by other participants, actively participating, collecting and supplying data to the cartel participants and acting as a mediator in cases of dispute, which were all services for which AC Treuhand received remuneration, contributed to the distortion of competition within the EU.27 On the one hand, therefore, the CJEU's judgment appears to apply the traditional test for establishing liability for participation in a cartel but broadly brings a range of service providers potentially within its ambit. On the other hand, the finding of liability against AC Treuhand is based on AC Treuhand's egregious behaviour which was considered central to the functioning of the cartel: the CJEU referred to the 'essential role' played by AC Treuhand in facilitating the cartel and noted that the 'very purpose' of its behaviour was to restrict competition.28

The judgment is important as it also reinforces the liability of intermediaries in vertical arrangements ('hub and spoke' cartels).

In February 2015, the Commission fined ICAP €14.9 million for its role in six cartels between 2007 and 2010 for facilitating an infringement relating to yen interest rate derivatives.29 The Commission found that ICAP acted as a communications channel between cartel members and disseminated false information to non-cartelists. ICAP is appealing the Commission's decision on the basis that the Commission failed to meet its evidential burden and that the 'facilitator test' catches too broad a spectrum of conduct.30 The appeal in ICAP is an opportunity for the EU courts to provide some further guidance on the scope of the test for facilitator liability.

In Eturas, the CJEU examined the vertical relationship between Eturas, an online comparison platform, and the travel agencies that used its system. Eturas sent messages to the travel agencies and restricted the discount which the travel agencies could offer. The case concerned a reference from Lithuania's Supreme Administrative Court which asked the CJEU to confirm whether participants are deemed aware or ought to be aware of messages they receive such that in order to absolve themselves from any anticompetitive behaviour they must actively express an objection to such behaviour.31 The CJEU confirmed that the behaviour could constitute a concerted practice. Eturas essentially acted as a cartel facilitator.

The case is relevant given the rise in online comparison businesses and apps. Companies operating comparison services for everything from travel to household services need to be particularly cautious of their precise role in light of this case and companies signing up to these platforms must also take note of the antitrust risk and ensure an active compliance role.

The CJEU considered whether the mere dispatch of a message may constitute sufficient evidence that the recipients were aware or ought to have been aware of its content such that a concerted action may result. The CJEU referred to its judgment in AC-Treuhand to highlight that passive conduct, such as mere attendance at a meeting, can constitute an infringement of article 101.32 It emphasised, however, that ultimately the question is one of fact to be established by the national court33 The CJEU concluded that where the information system host sends a message to companies that operate on its system inciting anticompetitive behaviour and subsequently alters its system to introduce the anticompetitive conduct (eg, restrict the discounts available), the undertakings will be deemed to have engaged in a concerted practice unless it can be shown that they publicly distanced themselves.34 Following the CJEU's ruling, the Supreme Administrative Court held that the companies had breached competition law.

VM Remonts35 concerns a preliminary reference from the Supreme Latvian Court which asked the CJEU to rule on the extent to which a company can be liable for the actions of one of its service providers. The CJEU's judgment is pending. Advocate General Wathelet has given a controversial opinion suggesting that a rebuttable presumption of liability for third-party subcontractors and service providers should be introduced.36 This seems to depart from the Commission's obligation to prove an infringement by showing that companies, including facilitators, have participated in a cartel. The CJEU may very well conclude that no such novel infringement is warranted and that the case falls within the ambit of the facilitator doctrine. To the extent that the CJEU reaches such a conclusion, the judgment will provide the opportunity to clarify the scope of such liability.

InnoLux, Guardian: captive sales

On 9 July 2015, the CJEU handed down its judgment in InnoLux. InnoLux appealed the Commission decision in the LCD panels cartel in which the Commission based the value of sales for Innolux on transformed products sold within the EEA. The Commission considered transformed products to be the end-products into which the LCD panels were incorporated (eg, TVs). By basing the value of sales on transformed products, the Commission indirectly took into account captive sales made by InnoLux to the group companies which incorporated the LCD panels into the end-products which were then sold directly to independent customers in the EEA. InnoLux appealed the Commission's decision on the basis that the transformed products did not relate to the infringement at stake as they were on a downstream market. The CJEU rejected InnoLux's argument and found for the Commission.

The CJEU in reaching its decision offered important clarification as regards the treatment of captive sales, in particular, following the CJEU's judgment in Guardian. Guardian considered it had been treated unfairly because the other participants of the cartel had captive sales which were excluded from the fining calculation. Guardian successfully claimed that it had been discriminated against by virtue of its business structure and had received a disproportionately higher fine. In InnoLux, the CJEU considered that following Guardian, captive sales should 'generally' be taken into account for the purposes of calculating the fine of a vertically integrated company.37 Importantly, the CJEU's inclusion of the word 'generally' leaves open that there may be circumstances in which it is not appropriate to take captive sales into account. The key finding in Guardian was that, in setting the fine, the Commission must not discriminate against companies by virtue of their business structure. However, it left open the method by which the Commission can ensure equal treatment.

In both cases, the CJEU emphasised the importance of setting the fine at a level proportionate to an undertaking's infringement and in both cases the CJEU found that including captive sales either was (Innolux) or would have been (Guardian) an appropriate way to do this. These judgments have a significant impact for vertically integrated companies, increasing their potential exposure to cartel fines as the value of sales may be based on the sales of the end-product or include all sales including captive sales. Importantly, however, this is not an absolute, and where companies demonstrate that it would not be appropriate to include captive sales, the Commission is not bound to include them.

Société Générale: the settlement fining saga

In February 2014, Société Générale became the first settling party fined within the Commission's settlement procedure to appeal the fine to the General Court. Although settling parties agree to a range of the fine during the settlement procedure, they are not precluded from appealing the final amount.

In December 2013, the Commission fined a number of banks for their participation in the euro-denominated interest rates derivatives infringement. Société Générale was fined €445 million. Once the fines for the other settling banks were announced, Société Générale considered that its fine was unduly high and that it had been unfairly fined compared to the other settling parties, taking into account its more limited participation in the cartel.38 In its application for annulment, Société Générale argued that the value of sales considered by the Commission was incorrect. In March 2016, Société Générale withdrew its application for annulment following the Commission's announcement of a reduced fine of €227 million – almost half the original fine imposed in the settlement decision.

The reduced fine was set using the same methodology employed in the 2013 infringement decision but on the basis of newly submitted value of sales data.39 Interestingly, the Commission decided to reduce the fine through an administrative decision, as opposed to enduring the appeal process in the General Court.

The reduction of Société Générale's fine in this case may encourage settling companies that consider that they have been fined a disproportionate amount compared with other settling parties in the same cartel to appeal on this basis. Settlement may bring a case to a quick conclusion before the Commission but the efficiency of the overall process will be undone if companies opt to dispute the amount of the fine before the EU courts. To reap the benefits of quick resolution of cases under the Commission's settlement procedure companies submitting their value of sales to the Commission should carefully consider precisely what financial data are required and in case of doubt clarify with the case team, but also if possible obtain an indication from the Commission as to their positioning in terms of the level of the fine compared with the other settling parties at an earlier stage of the negotiations. On the basis of this case, this is a discussion the Commission may be willing to engage in during the settlement process in order to avoid further appeals on fines in settlement cases.

The same argument of discrimination has been raised by a settling company in Printeos and Others40 in which the settling party appealed the fine imposed by the Commission in the Envelopes decision on the basis of the principle of equal treatment in the determination of the fine.

* The authors would like to thank Aidan Forde for his assistance with preparing this chapter.


1 Case T-9/11, Air Canada v Commission, Judgment of 16 December 2015, EU:T:2015:994; Case T-28/11, Koninklijke Luchtvaart Maatschappij v Commission, Judgment of 16 December 2015, EU:T:2015:995; Case T-36/11, Japan Airlines v Commission, Judgment of 16 December 2015, EU:T:2015:992; Case T-38/11, Cathay Pacific Airways v Commission, Judgment of 16 December 2015, EU:T:2015:985; Case T-39/11, Cargolux Airlines International v Commission, Judgment of 16 December 2015, EU:T:2015:991; Case T-40/11, Latam Airlines Group and Others v Commission, Judgment of 16 December 2015, EU:T:2015:986; Case T-43/11, Singapore Airlines and Others v Commission, Judgment of 16 December 2015, EU:T:2015:989; Case T-46/11, Deutsche Lufthansa and Others v Commission, Judgment of 16 December 2015, EU:T:2015:987; Case T-48/11, British Airways v Commission, Judgment of 16 December 2015, EU:T:2015:988; Case T-56/11, SAS Cargo Group and Others v Commission, Judgment of 16 December 2015, EU:T:2015:990; Case T-62/11, Air France-KLM v Commission, Judgment of 16 December 2015, EU:T:2015:996; Case T-63/11, Société Air France v Commission, Judgment of 16 December 2015, EU:T:2015:993 and Case T-67/11, Martinair Holland v Commission, Judgment of 16 December 2015, EU:T:2015:984.

2 Case C-247/14 P, HeidelbergCement v Commission, Judgment of 10 March 2016, EU:C:2016:149; Case C-248/14 P, Schwenk Zement v Comission, Judgment of 10 March 2016, EU:C:2016:150; Case C-267/14 P, Buzzi Unicem v Commission, Judgment of 10 March 2016, EU:C:2016:151; Case C-268/14 P, Italmobiliare v Commission, Judgment of 10 March 2016, EU:C:2016:152.

3 Case C-428/14, DHL Express (Italy) and DHL Global Forwarding (Italy), Judgment of 20 January 2016, EU:C:2016:27.

4 Case C-194/14 P, AC-Treuhand AG v Commission, Judgment of 22 October 2015, EU:C:2015:717.

5 Case COMP/ 39.861 Yen interest rate derivatives (YIRD), Decision of 4 February 2015.

6 Case C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42.

7 Case C-542/14, VM Remonts, pending.

8 Case C-231/14 P, InnoLux Corp. v Commission, Judgment of 9 July 2015, EU:C:2015:451; Case C-580/12 P, Guardian Industries and Guardian Europe v Commission, 12 November 2014, EU:C:2014:2363.

9 Commission Press Release 'Antitrust: Commission fines banks €1.49 billion for participating in cartels in the interest rate derivatives industry' IP/13/1208 of 4 December 2013.

10 Case T-39/11, Cargolux Airlines International v Commission, Judgment of 16 December 2015, EU:T:2015:991, paragraphs 69–73.

11 Article 11(5) of the Damages Directive limits the contribution claim that another undertaking may claim from an undertaking that is granted immunity to the amount of the harm it caused to its direct and indirect purchasers.

12 Case T-39/11, Cargolux Airlines International v Commission, Judgment of 16 December 2015, EU:T:2015:991, paragraph 39.

13 British Airways did not request that the decision be annulled in its entirety. The General Court stated in the British Airways judgment that the EU courts cannot rule ultra petita (ie, the scope of the annulment cannot go further than that sought by the applicant) (T-48/11, paragraph 88).

14 Case C-122/16 P, British Airways v Commission. British Airways has appealed on two grounds: first, 'that the General Court erred in law by applying the concept of ultra petita to constrain its actions even when the General Court had of its own motion found there to be fundamental public policy defects which vitiated the European Commission's Decision entirely. By raising a public policy issue of its own motion, and by deciding the case before it on that basis, the General Court did not rule ultra petita; the General Court therefore erred in law in considering itself restricted by ultra petita when it came to deciding on the consequences of its ruling in the operative part of its judgment'; and second, 'that alternatively, even if the principle of ultra petita was engaged, the General Court should have held that it was nonetheless free – indeed obliged – to annul the contested Decision entirely in order to give effect to its conclusions that there was a defect in the contested Decision which violated superior norms of law, namely the principles of legality and of effective judicial protection under article 47 of the Charter on Fundamental Rights.'

15 Case T-302/11, HeidelbergCement v Commission, Judgment of 14 March 2014, EU:T:2014:128, paragraph 42. See also Case T-297/11, Buzzi Unicem v Commission, Judgment of 14 March 2014, EU:T:2014:122, paragraph 36; Case T-305/11, Italmobiliare v Commission, Judgment of 14 March 2014, EU:T:2014:126, paragraph 68; Case T-306/11, Schwenk Zement v Commission, 14 March 2014, EU:T:2014:123, paragraph 37.

16 Case C-247/14 P, HeidelbergCement v Commission, Judgment of 10 March 2016, EU:C:2016:149, paragraph 27. See also Schwenk Zement v Comission, Judgment of 10 March 2016, EU:C:2016:150, paragraph 35; Case C-267/14 P, Buzzi Unicem v Commission, Judgment of 10 March 2016, paragraph 28; Case C-268/14 P, Italmobiliare v Commission, Judgment of 10 March 2016, paragraph 29.

17 See Case C-247/14 P, HeidelbergCement v Commission, Judgment of 10 March 2016, EU:C:2016:149, paragraph 38: '[A]though the Court has held, with respect to inspection decisions, that even though the Commission is obliged to indicate as precisely as possible what is being sought and the matters to which the investigation must relate, it is on the other hand, not essential in a decision ordering an inspection, to define precisely the relevant market, to set out the exact legal nature of the presumed infringements or to indicate the period during which those infringements were allegedly committed.' See also Schwenk Zement v Comission, Judgment of 10 March 2016, EU:C:2016:150, paragraph 42; Case C-267/14 P, Buzzi Unicem v Commission, Judgment of 10 March 2016, paragraph 39; Case C-268/14 P, Italmobiliare v Commission, Judgment of 10 March 2016, EU:C:2016:152, paragraph 40.

18 Antitrust: Commission closes antitrust proceedings against a number of cement manufacturers, European Commission Daily News, 31 July 2015.

19 TAR Lazio, section I, 29 March 2012, No. 3034.

20 Case C-428/14, DHL Express (Italy) and DHL Global Forwarding (Italy), Judgment of 20 January 2016, EU:C:2016:27, paragraph 39.

21 Case C-428/14, DHL Express (Italy) and DHL Global Forwarding (Italy), Judgment of 20 January 2016, EU:C:2016:27, paragraph 61.

22 Case C-428/14, DHL Express (Italy) and DHL Global Forwarding (Italy), Judgment of 20 January 2016, EU:C:2016:27, paragraph 68.

23 The deadline for implementation of the Damages Directive in the national laws of member states is 27 December 2016.

24 See footnote 11.

25 The International Chamber of Commerce submitted a proposal to the International Competition Network suggesting the creation of a 'one-stop shop' for leniency markers in March 2016, available here:

26 Case C-194/14 P, AC-Treuhand AG v Commission, Judgment of 22 October 2015, EU:C:2015:717, paragraph 35.

27 Case C-194/14 P, AC-Treuhand AG v Commission, Judgment of 22 October 2015, EU:C:2015:717, paragraph 30.

28 Case C-194/14 P, AC-Treuhand AG v Commission, Judgment of 22 October 2015, EU:C:2015:717, paragraphs 37 and 38.

29 Case COMP/39.861 Yen interest rate derivatives (YIRD), Decision of 4 February 2015.

30 Case T-180/15, ICAP v Commission, pending.

31 Case C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42, paragraph 25.

32 Case C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42, paragraph 28.

33 Case C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42, paragraph 34.

34 Case C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42, paragraph 50.

35 Case C-542/14, VM Remonts, pending.

36 Opinion of Advocate General Wathelet in Case C-542/14, VM Remonts and Others, EU:C:2015:797.

37 Case C-231/14 P, InnoLux Corp. v Commission, Judgment of 9 July 2015, EU:C:2015:451, paragraph 69.

38 Case T-98/14, Société Générale v Commission, withdrawn on 2 March 2016.

39 Commission Press Release 'Amended – Antitrust: Commission fines banks €1.49 billion for participating in cartels in the interest rate derivatives industry' IP 13/1208 of 4 December 2013.

40 Case T-95/15, Printeos and Others, pending.

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.

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Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.