In three judgments rendered on 3 March 201122, the General Court dealt with several applications launched by companies which were fined by the Commission for their involvement in a cartel in the gas insulated switchgear (‘GIS’) market23.
The common background of the three judgments is the Commission’s finding of a cartel in the GIS market. In its decision the Commission found that the companies active in the GIS market coordinated the allocation of GIS projects worldwide. A peculiarity about the cartel was that in several instances, the ultimate company having control over the companies involved in the cartel changed during the cartel; in some cases the ultimate control even changed from one participant in the cartel to another. This situation led to some difficult issues in determining which company was liable for which part of the infringement.
The parties that launched the respective applications invoked a great number of pleas in law, yet only the pleas which were granted by the General Court will be discussed below.
As a preliminary remark, it can be noted that the application of Siemens AG24 was dismissed in its entirety by the General Court, and therefore this judgment will not be discussed here.
In the appeal lodged by Siemens AG Österreich and others25, the General Court accepted two pleas in law.
The first pleading which was accepted by the General Court related to the Commission’s wrong finding of the applicants’ resuming their participation in the cartel on 1 April 2002. In fact, the General Court held that the written note from one of the applicants on which the Commission based itself does not contain any information that substantiates the date of 1 April 2002. The note did, however, provide information that it was at least drafted prior to 1 July 2002 and thus at the latest in June 2002. In the absence of a precise date and according to the principle in dubio pro reo, the date on which the applicants resumed their participation should be set on 1 July 2002.
The second pleading which the General Court acceptsrelated to the various companies to which the conduct of the undertakings which participated in the cartel may be attributed, and the application of the rules governing the joint and several liability for payment of fines. The General Court started by setting out the principles for determining which undertaking is liable to pay the fines. Thus, a legal entity which has participated in its own right in an infringement and which has subsequently been acquired by another company continues to bear responsibility themselves for the unlawful conduct prior to the acquisition where it has not been purely and simply absorbed by the acquiring company but continued its activities as a subsidiary. In such a case the acquiring company can only be held liable for the conduct of its newly acquired subsidiary with effect from its acquisition in the event the subsidiary continues the infringement, and if the liability of the new parent company can be established. The same principles apply where the company acquired has participated in the cartel not independently, but rather as a subsidiary of another group. On the basis of these principles, the General Court determined several periods in which the different applicants could be held personally and jointly and severally liable for the infringement. The General Court concluded that the Commission came to the same conclusions. The General Court continued and stated that based on the principle that penalties must be specific to the offender and to the offence concerned, it follows that each company must be able to discern from the decision that imposed a fine on it to be paid jointly and severally a specific amount that it should bear. Therefore, the Commission must inter alia specify the periods during which the companies concerned were jointly liable for the unlawful conduct of the undertakings which participated in the cartel and, where necessary, the degree of liability of those companies for that conduct. This was important in this case as some undertakings participating in the cartel were held consecutively to be different companies which were also active independently in the cartel. However, in the calculation of the fines imposed jointly and severally, the Commission made some errors as to the amounts that each undertaking had to pay, and therefore, the Commission decision has to be annulled on this point.
In the application lodged by Areva and others26, the General Court upheld one plea in law submitted by the applicants. This plea related to the argument that the Commission had violated the principle of equal treatment and proportionality by applying a 50% increase of the basic amount of the fine imposed on the applicants by way of aggravating circumstance due to the role as leaders of the cartel. First of all the applicants argued that they could not be considered as leaders of the cartel as they only performed as the secretariat of the cartel and did not exert pressure on other companies to join the cartel nor did they make decisions about the expansion of the cartel. Secondly, the applicants argued that the 50% increase was disproportional and violated the principle of equal treatment as the same increase was applied to Siemens AG yet Siemens had performed the role as secretariat of the cartel twice as long as the applicants.
As far as the claim that the Commission was wrong in imputing the role as leader of the infringement on the applicants, the General Court held that the Commission was right in holding that the company that performed as the secretariat of the cartel could be considered as leader of the cartel, as the secretariat of the cartel exercised an essential role for the cartel and contributed to the proper functioning of the cartel. The fact that the applicants did not exert pressure on others to join the cartel or took decision to broaden the scope of the cartel, is irrelevant, as these are elements in determining whether a company can be considered as instigator of a cartel and not for determining whether a company is leader of the cartel. However, the General Court did judge that the Commission violated the principle of equality and proportionality in applying the same percentage of increase of the fine to Siemens AG and the applicants. The General Court found that it was not disputed that Siemens AG performed the role as secretariat more than twice as long as the applicants. Therefore, it is clear that Siemens AG and the applicants were in a different and not a comparable situation. Consequently, Siemens AG and the applicants should have been treated in a different way, and thus the General Court lowered the percentage of the increase of the basic amount of the fine.