On 11 July 2014 the General Court ("GC") rendered its decision T-540/08 on appeal by Esso Deutschland GmbH, Esso S.A., ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil Corporation (jointly the "Applicants") against the European Commission's (the "Commission") decision finding that the Applicants participated in a cartel on the paraffin wax market and the German slack wax market. Amongst other things, the Applicants held that the Commission had erred in its calculation of the fine.
The Commission had taken into account the average sales of the ExxonMobil group over the years 2000-2002. It subsequently applied a multiplier of 11.5 for the duration of the infringements, which ended in November 2003. As a result the final fine also comprised the sales generated by Exxon in the period from 1992 to 1999. However, during that period Exxon and Mobil did not form one undertaking.
The Applicants submitted that taking the pre-merger period into account is inconsistent with the findings of fact made in the contested decision. They furthermore stated that the Commission's approach infringed the principles of equal treatment and proportionality. The GC accepted the Applicants' arguments.
According to the GC, an individual undertaking cannot compel the Commission to rely upon a period different from that used for the other undertakings, unless it proves that its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement. Such particular reasons were found in the case at hand on the basis that Exxon kept aloof from any cartel infringements from 1992 to 1999. In view of the fact that Exxon was treated equally in a different situation, the GC found that the Commission had breached the principle of equal treatment.
Moreover, the GC concluded that the Commission had breached the principle of proportionality. By multiplying the value of sales of the post-merger entity also by the number of years in which only one of the parties to the merger participated in the infringement, the Commission artificially increased the fine in a manner which does not reflect economic reality. On this basis, the GC recalculated the fine of ExxonMobil without having regard to the value of Exxon's paraffin wax sales in the period prior to the merger.