The Court of Justice of the European Union (”CJEU”) dismissed the appeals brought by Gascogne Sack Deutschland GmbH, Groupe Gascogne SA and Kendrion NV (“Appellants”), in which they sought the annulment of the judgments of the General Court (“GC”) whereby fines imposed by the Commission in its industrial plastic bags cartel decision had been maintained. In its decision of 2005, the Commission imposed fines totaling over €290 million on several undertakings for participating in a cartel in the industrial plastic bags sector. According to the Commission, the infringement consisted mainly of price-fixing and establishing common price calculation models, sharing of markets and allocating sales quotas, assigning of customers, deals and orders as well as exchanging information in Belgium, Germany, Spain, France, Luxembourg and the Netherlands. Certain undertakings which had participated in that cartel brought actions before the GC for the annulment of the Commission’s decision or for the reduction of the fines imposed on them. By its judgments delivered on 16 November 2011, the GC dismissed the appeals brought by the Appellants and maintained the fines imposed by the Commission. On appeal to the CJEU, the CJEU held that when a parent company has a 100 % shareholding in a subsidiary which has infringed the competition rules, there is a simple presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. Therefore, the Commission was able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary. Further, the CJEU held that where the excessive length of the proceedings does not affect their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal in the context of appeal proceedings. In the present case, the companies concerned did not provided any evidence to the CJEU demonstrating that a failure by the GC to adjudicate within a reasonable time could have affected the outcome of the disputes before it. The CJEU also stated that a claim for compensation for the damage caused by the failure by the GC to adjudicate within a reasonable time may not be made directly to the CJEU in the context of an appeal, but must be brought before the GC itself, by way of an action for damages. However, the CJEU found that in the present case, the length of the proceedings before the GC, which amounted to approximately 5 years and 9 months, could not be justified by any of the circumstances in connection with those cases. Accordingly, the CJEU concluded that the procedures in the GC breached the right of the parties to have their case heard within a reasonable time conferred on them by the Charter of Fundamental Rights of the European Union. The CJEU also noted that the breach of that right was sufficiently serious and may therefore give rise to liability on the part of the EU for the damage arising thereof. Source: Court of Justice of the European Union Press Release 26/11/2013

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