European Union: Summary Of Significant Cartel And Horizontal Agreements Developments In November 2017

European Commission imposes fines on car safety equipment suppliers in cartel settlement case

On 22 November 2017, the European Commission announced that it had imposed fines totalling € 34 million on five car safety equipment suppliers for taking part in one or more of four separate cartels for the supply of car safety equipment to some Japanese car manufacturers in the EEA. The Commission concluded the case under its cartel settlement procedure.

The Commission's investigation revealed the existence of four separate infringements of varying scope and duration. The Commission stated that the companies involved – Tokai Rika, Takata, Autoliv, Toyoda Gosei and Marutaka – acknowledged that, for several years, they had coordinated prices or markets and exchanged sensitive information for the supply in the EEA of seatbelts, airbags and steering wheels to Japanese car manufacturers Toyota, Suzuki and Honda respectively. The Commission also reported that the coordination of the cartels took place outside the EEA, particularly in Japan, through meetings at the suppliers' business premises, in hotels and restaurants, as well as through e-mail exchanges.

The fines imposed by the Commission ranged from € 156,000 to € 12,724,000 depending on each individual infringement. Takata received full immunity from fines for three of the infringements as it had revealed their existence to the Commission, and Tokai Rika received full immunity for one of the infringements. Tokai Rika, Takata, Autoliv and Toyoda Gosei were granted fine reductions ranging between 28-50% for each cartel they were involved in based on their cooperation with the Commission investigation under the 2006 Leniency Notice. The reductions reflected the timing of each supplier's cooperation and the extent to which the evidence they provided assisted the Commission in proving the existence of the infringements in which they had been involved. The companies received a further 10% reduction of their fines under the Commission's 2008 Settlement Notice.

General Court partially annuls decision in Yen interest rate derivatives cartel case

On 10 November 2017, the General Court ("GC") partially upheld the appeal lodged by Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd ("Icap") against a Commission decision fining Icap € 14.9 million for facilitating cartels in the market for interest rate derivatives in Japanese yen (T-180/15, Icap and Others).

In its judgment, the GC ruled that the Commission had not erred in law in finding that Icap had facilitated a number of infringements of Article 101 TFEU. However, the GC considered that the Commission was wrong with respect to the duration of Icap's participation in four of the cartels in which Icap was found to have been involved. The GC also took the view that the Commission had breached Icap's rights to presumption of innocence and good administration in the previously adopted Settlement Decision (to which Icap was not a party) but nonetheless concluded that this breach was not a sufficient basis to annul the contested decision. Finally, the GC annulled the part of the Commission's decision setting the fine because, due to an inadequate statement of reasons given by the Commission, Icap was not in a position to adequately understand or dispute the fining methodology followed by the Commission, which had departed from the standard fining methodology.

Court of Justice dismisses appeal of British Airways in airfreight cartel case

On 14 November 2017, the Court of Justice of the European Union ("ECJ") dismissed an appeal lodged by air carrier British Airways against a judgment of the General Court ("GC"), which had partially annulled the Commission's decision against British Airways in the Airfreight cartel case (See VBB on Competition Law, Volume 2016, No. 1, available at www.vbb.com) (C-122/16, British Airways). In its judgment, the ECJ confirmed that EU courts are bound by the ne ultra petita principle - which prevents them from pronouncing an annulment that goes further than that sought by the applicant – even where the grounds for annulment constitute a matter of public policy raised by the court of its own motion.

Court of Justice provides guidance to French court on relationship between EU Common Agricultural Policy and competition law in endives cartel case

On 14 November 2017, the Court of Justice of the European Union ("ECJ") handed down a judgment on a request for a preliminary ruling from the French Supreme Court regarding the relationship between the objectives of the EU's Common Agricultural Policy and those of EU competition law (C-671/15, APVE and Others). Following the opinion of Advocate General Wahl (see VBB on Competition Law, Volume 2017, No. 4, available at www.vbb.com), the ECJ took the view that agricultural producer organisations and their associations may be held liable for breaching EU competition law under certain circumstances.

Court of Justice provides guidance to Bulgarian court on application of competition law to setting minimum legal fees

On 23 November 2017, the Court of Justice of the European Union ("ECJ") handed down a judgment on requests for preliminary rulings from a Bulgarian court regarding the application of competition law to the prerogative granted to the Bulgarian Supreme Council of the Legal Profession to set a minimum level of legal fees (Cases C-427/16 and C-428/16, CHEZ Elektro Bulgaria and FrontEx International v Yordan Kotsev and Emil Yanakiev). In its judgment, the ECJ considered that Article 101 TFEU, read in conjunction with Article 4(3) of the TEU, must be interpreted as meaning that national legislation (i) which does not allow a lawyer and his or her client to agree to remuneration below a minimum amount laid down in a regulation issued by a professional organisation of lawyers, without that lawyer being subject to a disciplinary procedure, and (ii) which does not authorise the courts to order reimbursement of fees in an amount below that minimum amount, is capable of restricting competition under Article 101 TFEU. The ECJ instructed the referring court to determine whether the regulation had legitimate objectives and whether the restrictions imposed were limited to what was necessary to ensure that those legitimate objectives were given effect.

Court of Justice rules that adoption of EU commitment decisions does not prevent national courts from examining lawfulness of conduct

On 23 November 2017, the Court of Justice of the European Union ("ECJ") delivered a judgment on a request for a preliminary ruling from the Spanish Supreme Court seeking clarification as to whether a commitment decision adopted by the Commission under Article 9(1) of Regulation 1/2003 precludes national courts from examining the conformity of the conduct covered by the commitment decision with the competition rules (Case C-547/16, Gasorba and Others). Following the opinion of Advocate General Kokott (see VBB on Competition Law, Volume 2017, No. 9, available at www.vbb.com), the ECJ ruled that national courts remain free to assess in a more comprehensive and in-depth manner the compatibility of conduct with the competition rules even where that conduct has already been the subject of a commitment decision adopted by the Commission. At the same time, the ECJ considered that national courts should pay deference to the legal effects of the EU commitment decision, which is an indication of the anti-competitive nature of the conduct concerned.

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