On 4 July 2011 the European Commission ('Commission') announced that it had decided to repeal its heat stabilisers cartel decision of November 2009 in relation to Ciba/BASF and Elementis. The Commission fined 24 companies (within 10 corporate groups) a total of €173,860,400 for breaching Article 101 of the Treaty on the Functioning of the European Union ('TFEU') by participating in two cartels relating to plastic additives used as heat stabilisers. The Commission found that companies had allocated markets, fixed prices, shared customers and shared information in relation to tin stabilisers over a 13 year period from 1987 and ESBO/esters for a nine year period from 1991, with both cartels ending in 2000.  The fines imposed on Elementis and Ciba/BASF as a result totalled €32,575,000 and €68,424,000 respectively.

In explaining its decision, the Commission said that since Ciba/BASF and Elementis each ceased their involvement in the cartels in 1998, its own decision of 2009 had been adopted after the expiration of the 10 year limitation period. Article 25(5) of Regulation 1/2003 sets a maximum 10 year time limit for the imposition of a fine for a breach of Article 101 TFEU. The Commission argued that the period had been suspended because some companies under investigation other than Ciba/BASF and Elementis challenged the Commission's investigative measures related to cartel procedure. In March of this year, however, the European Court of Justice (as formerly named) ruled in the ArcelorMittal case (relating to a steel beams cartel) that an action against a final decision or investigative measure has a suspensive effect only for the party that brought such an action. The Commission therefore concluded in this case that since neither Ciba/BASF nor Elementis had brought an action before the adoption of the decision, the 10 year limitation period did apply and it would overturn the November 2009 decision in respect of them.

For two other companies (Akzo Nobel N.V. and Akcros Chemicals Ltd), the decision was amended because they were jointly and severally liable with Elementis for part of Elementis' fine. The total amount of the fine imposed on each, however, remained unchanged

To view Community Week, Issue 528; 8th July 2011 in full, Click here.

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.