On 30 January 2013, the Paris Court of Appeal (Court of Appeal) dismissed the appeals brought against the decision of the French Competition Authority (FCA) in the consumer detergents sector, by confirming that the infringements sanctioned by the European Commission (Commission) and the FCA were different and did not constitute a single, complex and continuous infringement (SCCI) which had been the subject of a prior sanction, thereby rejecting the claim that the FCA sanction violated the prohibition on double jeopardy (non bis in idem).
Following appeals brought against the FCA’s decision of 8 December 2011 sanctioning Unilever, Henkel, Procter & Gamble (P&G) and Colgate Palmolive due to an anticompetitive agreement on prices and promotions in the consumer detergents sector in France, the Court of Appeal dismissed all of the arguments made by the appellants.
Henkel and P&G claimed, inter alia, on the basis of the non bis in idem principle, that the French agreement was part of a European wide cartel and constituted a limb of the SCCI which has already previously been sanctioned by the Commission in April 2011 at the conclusion of leniency and settlement procedures.
A certain degree of confusion seems to have prevailed among the leniency applicants regarding the choice of the relevant jurisdiction: Unilever applied immediately to the FCA, then over a month later, Henkel filed an application both to the Commission and to several national authorities (including the FCA); another application was then filed with the Commission by Unilever, followed by P&G, which applied to different authorities (European and national). Such uncertainty probably resulted from their dilemma as to whether there was a single global infringement or several national independent infringements, since the case law on the criteria of an SCCI is unclear.
However, considering the object of the practices, products, durations, geographical scopes and undertakings concerned, the Court of Appeal held that the two infringements were clearly distinct:
- the cartel prohibited by the Commission consisted, since 2002, of an indirect increase of the price of powdered detergents in the context of the environmental initiative of the Association of Iron and Steel Engineers implemented in 8 Member States (including France)
- on the other hand, the cartel investigated by the FCA was aimed at directly fixing prices and promotions of detergents in all product formats, limited to the French market in the context of the Loi Galland, and included Colgate Palmolive, which was not a party to the European cartel.
Even independently of the underlying facts, the Court of Appeal appears to have given particular weight to the specific procedural context which enabled the FCA to dispel, beforehand, any doubts as to a potential double jeopardy issue following the Commission’s confirmation that there were two parallel cases and that the FCA was best placed to deal with the French agreement.
Moreover, in the view of the Court of Appeal, Henkel and P&G could not have ignored such differences following their admission of the scope and the qualification of the cartel as described by the Commission in the context of the settlement procedure. The Commission sanctioned a single and continuous infringement without referring to a complex nature, which is the decisive element in including distinct practices in a single infringement.
Although such cooperation between the FCA and the Commission is welcome, an issue can be raised with regard to the conditions applied by the authorities as to the attribution of competence between them, and whether the facts incriminated were genuinely distinct, considering the wide application of the notion of the SCCI in other cases.
In any event, this case serves as a reminder of the risks of submitting to a leniency procedure without precisely identifying all of the competent authorities – yet another reason to re-launch the debate in favour of the creation of a ‘one stop shop’ in this area.