On 25 October 2011, the European Court of Justice ("ECJ") delivered its ruling in the Soda Ash case (C-110/10P), upholding the appeal brought by Solvay SA against the European Commission's decisions and the judgments of the General Court ("GC") regarding alleged anti-competitive practices and abuse of a dominant position in the soda ash market. Solvay has successfully appealed against both the 2000 decisions of the Commission to fine Solvay for breach of Articles 101 and 102 TFEU and the 2009 judgments of the GC to uphold the Commission's decisions. As a result, the ECJ has overturned fines imposed on the company totalling € 23 million.
The proceedings against Solvay date back to 1990, when the Commission fined Solvay for both anti-competitive agreements and for having allegedly abused its dominant position in the soda ash market. On appeal, the European Courts annulled the Commission decisions on procedural grounds relating to the authentication of the initial decisions. In 2000, the Commission adopted new decisions fining Solvay following an abbreviated administrative procedure aimed at correcting the authentication process of the initial decisions. The GC upheld these decisions in 2009, though it granted Solvay a reduction in the level of the fines by 25%. Now the ECJ has annulled both the Commission's decisions and the GC's rulings based on the fact that Solvay had demonstrated that its rights of defence had been infringed. This follows on from recommendations by Advocate General ("AG") Juliane Kokott in April 2011, when she advised the ECJ to overturn the Commission's decisions as well as to annul the GC's judgements.
Solvay's successful appeal to the ECJ was based on the argument that its defence rights had not been respected by the Commission in what has now been a 22-year dispute. Solvay relied on three grounds of appeal: (i) infringement of the right to have its case disposed of within a reasonable time; (ii) infringement of the rights of the defence, arising from the fact that, after refusing Solvay access to the file during the administrative proceedings, the Commission mislaid part of the file; and (iii) infringement of Solvay's right to be heard before the Commission readopted the contested decisions. The ECJ ruled that the second and third grounds of the appeal were sufficiently well founded to justify overturning the Commission's decisions and it was therefore not necessary to examine the first ground of appeal based on the length of proceedings against Solvay.
The appeal to the ECJ was upheld because Solvay was able to demonstrate that the Commission had erred in its handling of the case and administrative improprieties had hindered Solvay in its attempts to defend itself. The ECJ pointed to the fact that, prior to the adoption of the Commission's decisions, Solvay was not granted full access to the Commission's file and this restricted its ability to examine all the documental evidence which may be relevant for its defence. Furthermore, since the Commission also lost a number of documents of the investigation file, and it is not known what evidence was contained in such documents, Solvay's right to defence was further impeded by the fact that these missing documents might have also been useful and relevant in its defence.
Additionally, with regard to the third ground of appeal and Solvay's request for another oral hearing before the Commission made its revised decisions in 2000, the ECJ found that Solvay should have been granted such an opportunity. The fact that Solvay was denied the ability to mount such a defence, after the original 1990 Commission decisions were overturned due to procedural irregularities, was considered to be an infringement of its rights of defence especially as Solvay was previously restricted in its access to all of the evidence and potentially relevant documents had subsequently gone missing during the intervening period between proceedings.
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