Competition: Court of Justice of the European Union confirms cartel facilitator's liability

On 22 October 2015, the European Court of Justice ("CJEU") handed down its judgment on AC Treuhand's ("Treuhand") appeal against a General Court ("GC") judgment, in which the GC had dismissed Treuhand's action challenging certain Commission decisions concerning the heat stabilizers cartels. The Commission announced in 2009 that it had fined 24 companies a total of EUR 173,864,000 for breaching Article 101 of the Treaty on the Functioning of the European Union ("TFEU") due to their involvement in two illegal cartels concerning plastic additives used as heat stabilizers. Treuhand was fined EUR 348,000 for its role as an administrator of the heat stabilizers cartels, for which Treuhand brought an action with the GC, which dismissed the action. Treuhand then appealed the GC judgment to the CJEU.

Advocate General Wathelet considered that the appeal should be upheld, because the GC had erred in agreeing with the Commission's finding that Treuhand had directly participated in the cartel because it played an administrative role in the cartel operation and meetings. The Advocate General noted, however, that Treuhand may have performed an accessory role in assisting the cartel, but the Commission had not raised this argument in its decision.

The CJEU disagreed with its Advocate General. It held that Treuhand was essential to the operation of the cartel, and nothing in Article 101 TFEU prevented the Commission from applying it to parties that operated on markets not impacted by the infringement. According to the CJEU, it would undermine the objective of competition law to interpret Article 101 TFEU as the Advocate General had proposed. The CJEU also noted that while turnover on the relevant markets is the usual starting point for assessing infringement decision fines, the Commission is expressly not restricted to using only that calculation. Treuhand, as a consultancy firm, was not active on the markets for tin stabilizers and ESBO/esters, and therefore it did not have any sales in those markets. Therefore, in order to reflect the importance of the infringement and Treuhand's participation, the Commission was entitled to impose a lump sum fine on Treuhand. Consequently, the CJEU dismissed Treuhand's appeal in its entirety. Source: Commission Press Release 22/10/2015

Competition: CCPL and Italmobiliare appeals against Commission decision in the retail food packaging cartel

On 26 October 2015, details were published of two separate appeals to the General Court ("GC") brought by Consorzio Cooperative di Produzione e Lavoro SC ("CCPL") and Italmobiliare SpA ("Italmobiliare") against the Commission decision and fines imposed in relation to the retail food packaging cartels. CCPL was held liable for the infringement of its subsidiary Coopbox, whereas Italmobiliare was held liable for the infringements of its subsidiary Sirap-Gena.

On 24 June 2015, the Commission fined eight manufacturers and two distributors of retail food packaging trays a total of EUR 115 million for having participated in at least one of five separate cartels. According to the Commission, the companies breached EU competition rules by price fixing and allocating customers of polystyrene foam or polypropylene rigid trays. Polystyrene foam and polypropylene rigid trays are used for packaging food sold in shops or supermarkets, for products such as cheese, meat, fish or cake. Both CCPL and Italmobiliare brought actions before the GC.

CCPL and Italmobiliare claim that the Commission erred in attributing joint and several parental liability to the infringements of Article 101 of the Treaty on the Functioning of the European Union ("TFEU") and Article 23(2) of Regulation 1/2003. CCPL and Italmobiliare also claim that the Commission made errors in the calculation of the fines. In addition CCPL and Italmobiliare claim that the Commission infringed the principles of proportionality, equal treatment and its duty to give reasons. Finally, Italmobiliare claims that the immunity applicant, Linpac, did not satisfy the necessary Leniency Notice conditions.Source: Official Journal of the European Union C 354/63, 26/10/2015 and Official Journal of the European Union C 354/64, 26/10/2015

In addition, kindly note the following merger control decisions by the Commission which are published on the website of the Commission’s Directorate-General for Competition:

  • Commission approves joint acquisition of Geosel Manosque, a French hydrocarbons storage company, by Ardian and EDF
  • Commission approves acquisition of certain bauMax Do-It-Yourself retail stores in Slovakia, Slovenia and the Czech Republic by OBI
  • Commission approves acquisition of PCF by ALSO