On 18 October 2018, the General Court upheld an appeal lodged by the GEA group against the European Commission's readopted decision in the heat stabilisers cartel case and annulled the Commission's decision in so far as it concerns the GEA group (Case T-240/16, GEA Group AG).
In the present case, the Commission adopted its original decision in 2009, in which it found that a number of companies had participated in anti-competitive arrangements or concerted practices concerning the tin stabiliser sector and the epoxidised soybean oil and esters sector in the EEA. In that decision, the Commission found: (i) the GEA group (the applicant), ACW and CPA jointly and severally liable for one infringement ("infringement A"); and (ii) the GEA group and ACW jointly and severally liable for another infringement ("infringement B"). In 2010, the Commission adopted a decision amending its original decision due to the fact that the fine imposed on ACW exceeded the ceiling of 10% of its total turnover. The Commission reduced the amount of the fine imposed on ACW, but the total fines for which the GEA group was held jointly and severally liable remained unchanged.
In July 2015, the General Court annulled the 2010 decision in so far as it concerned the GEA group on the grounds that the Commission had breached the GEA group's rights of defence by adopting the 2010 decision without having first heard the GEA group (see VBB on Competition Law, Volume 2015, No. 7, available at www.vbb.com). Subsequently, in June 2016, the Commission re-adopted the contested decision. GEA appealed against the 2016 readopted decision.
On appeal, the GEA group claimed, inter alia, that the Commission had infringed the principle of equal treatment when allocating the fine reduction granted to ACW to the fines imposed for infringement A (for which the GEA group, ACW and ACP were held jointly and severally liable) and infringement B (for which the GEA group and ACW were held jointly and severally liable). In essence, the Commission reduced by 100% the part of ACW's fine (in respect of infringement B) for which ACW and the GEA group were jointly and severally liable (thus leaving the GEA group solely liable for that part of the fine), but reduced by only 43% the part of ACW's fine (in respect of infringement A) for which the GEA group was jointly and severally liable with ACW and CPA. The GEA group claimed that this amounted to discriminatory treatment in favour of CPA since CPA did not have to bear a higher share of the fine, unlike GEA, which had been found liable for a higher share of the fine as both joint and several co-debtor and as sole debtor.
The principle of equal treatment is a general principle of law that is enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to this principle, comparable situations should not be treated differently and different situations should not be treated in the same way, unless such treatment is objectively justified.
The General Court agreed with the GEA group's submissions. In its judgment, the General Court considered that this situation conferred an undue advantage on CPA, which was in a comparable situation to the GEA group. According to the Court, the Commission should have allocated the reduction of the amount of ACW's fine proportionally in both cases of joint and several liability (i.e., to infringement A and infringement B). By not doing so, the Commission had breached the principle of equal treatment and, accordingly, the General Court annulled the Commission's 2016 decision.
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