On 17 December 2014, the General Court ("GC") dismissed in its entirety an action for annulment brought by Pilkington Group Limited, and various subsidiaries to challenge the Commission's decision fining Pilkington EUR 357 million for its participation in the car glass cartel.
In its decision of 2008, the Commission found that a group of manufacturers of glass and glazing products, including Pilkington, participated in a market-sharing cartel in the automotive glass sector. Pilkington lodged an appeal to annul the decision and to reduce the imposed fine.
The GC confirmed the Commission’s finding that Pilkington was involved in a single and continuous infringement of Article 101(1) TFEU. Although Pilkington maintains that the Commission failed to rely on clear and probative evidence to establish its participation in a single and continuous infringement, the GC emphasized that evidence of cartel activity is often only fragmentary and sparse so that it is often necessary to reconstruct certain details through deduction. (Please see our November 2014 Newsletter discussing how the Commission failed to provide sufficient evidence against Soliver for its alleged participation in the same cartel.)
As for the fine, the GC held that the contested decision was sufficiently clear to enable Pilkington to understand how the Commission examined the gravity and the duration of the infringement, as well as the method of calculation used in order to set the amount of fine. More specifically, the GC held that the rights of defence do not require that the undertakings concerned have the opportunity to make submissions on the way in which the Commission proposes to employ the imperative criteria of the gravity and the duration of the infringement when determining the amount of the fines. Therefore, it was sufficient for the Commission to indicate the main factual and legal elements on which it intended to base its calculation of the fines. It is not to state the manner in which it would use each piece of evidence in calculating the fine.
In addition, the GC concluded that the fine was proportionate and adequate, despite being one of the highest fines imposed; the Commission did not err in converting Pilkington's turnover (denominated in pounds sterling) into euros for the purposes of establishing that the 10% fine ceiling was not exceeded.