On 27 September 2012, the General Court rendered sixteen judgments in the Dutch bitumen case. In fourteen cases, the appeal grounds were rejected in their entirety. In two cases, the European Commission's decision was partially annulled, leading to significant reductions of the fines imposed. An overview of all judgments in this case is included below.
On 13 September 2006 the Commission's decision ("Decision") in the Dutch bitumen case was adopted fining a large number of companies (suppliers of bitumen and construction companies using bitumen as input) for a cartel taking place between 1994 and 2002 and consisting of gross price fixing arrangements, the fixing of rebates and the operation of a monitoring system. Pending the appeals before the General Court, the first signs of follow-on civil litigation already appeared in Dutch courts (LJN: BP7518).
With fourteen out of sixteen cases in which the General Court upheld the Decision, the Commission appears to have delivered a convincing case. At this point, we limit ourselves to giving a brief overview of the cases in which the General Court annulled the Decision partially.
Shell Petroleum and Others
In this case (Case T-343/06) the fine was significantly reduced as the Court ruled that there was insufficient evidence to fine Shell for either instigating or leading the cartel. In its analysis the Court first of all noted that a possible role of instigator should be examined separately from a possible role as leader in the cartel.
In relation to the former the Commission had based its claim on evidence purportedly demonstrating that Shell was at the origin of the establishment of a rebate arrangement. The Court found that although the evidence relied upon by the Commission revealed that Shell had submitted proposals to establish a rebate, this evidence did not suffice to conclude whether it had done so on its own initiative or at the request of another participant (Koninklijke Volker Wessels Stevin). Also the claim that Shell had attempted to persuade ExxonMobil to join the cartel was rejected by the Court. In that context it referred to the vagueness of the underlying pieces of evidence which may not have pertained to the arrangements subject to the Decision. As a result the allegation of instigation could not be upheld.
In relation to the alleged role as a leader in the cartel, the Commission had relied on five types of alleged conduct by Shell (e.g. taking initiatives, having prominent roles in parts of the conduct) purportedly demonstrating its leading position in the behaviour. Upon review of the evidence the Court concluded that although Shell had played a particular role at the beginning of the cartel, it was insufficiently established whether it was the driving force of the cartel after the initial phase when the cartel developed into a multiparty arrangement. As a result, it could not be upheld that Shell qualified as a leader in the infringement, leading to a reduction of the fine as set out above.
Another noteworthy element of the judgment lies in the fact that the Court found that the 40% v. 60% shareholder relationship of the parents of the Shell group in the entity involved in the infringement, allowed the Commission to rely on the "presumption of decisive influence" (see Akzo Nobel and others v. Commission, Case C-97/08). As the two separate holding companies later on merged into a single parent and various close links had been present between the separate holding companies up to that moment, the Court concluded that "the situation was one analogous to a single company holding the entire share capital of its subsidiary".
Finally, on recidivism, the General Court rejected the argument that the Commission – in the earlier cartel cases that involved Shell – had not attributed the fine to the parent companies in the group at that time. As that circumstance does appear to have been decisive in ThyssenKrupp (Case T-144/07), it is unfortunate that the appeal before the European Court of Justice in that case, in which the exact standard for recidivism was to be clarified, has been withdrawn (case formerly registered under C-516/11).
Ballast Nedam Infra
In this case (Case T-362/06) the fine imposed was reduced as the Commission – for part of the duration of the infringement – had not communicated clearly in the statement of objections that it intended to hold the applicant liable in its capacity as a parent company of another participating entity. In this context, the Court considered it insufficient that the Commission did include a general statement in the introductory part of the Statement of Objections, indicating that it intended to hold jointly liable all parent companies for the behaviour of their infringing subsidiaries.
Due to this lack of clarity in the Statement of Objections, the Court concluded that the applicant had not been able to exercise its rights of defence which demand that the accused is enabled to respond to the allegations made. This resulted in the Court reducing the fine.
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