On 11 July 2013, the European Court of Justice ("ECJ") dismissed a number of appeals brought by removal companies in the International Removal Service Markets cartel in Belgium (Team Relocations and Others v Commission C-444/11 P and Gosselin Group v Commission C-429/11 P).
The Court held in case the Gosselin Group v Commission that participation for the second time in the same cartel three years after the end of the first participation, is a continuation. Therefore the limitation period of 5 years to bring proceedings was interrupted and only started to run after the end of the second participation. Nevertheless, the Court agreed that the three years in between when there was no participation, cannot be taken into account when calculating the fine.
Again regarding the duration and the manner in which it is taken into account for calculating the fine, the Court upheld in case Team Relocations and Others v Commission that Article 23(3) of Regulation No 1/2003 does not preclude the multiplication of the fine by the number of years a company participated in the cartel. The Court upheld the General Court’s ruling that while this "represents a fundamental change in methodology as to how the duration of the cartel is taken into consideration", Article 23 nevertheless does not preclude such a development.
In several cases, arguments were also raised in relation to the decision to calculate the basic fine based on 17% of the value of sales of the previous year in the relevant market and especially the Commission’s reasoning in this regard. Though the Court acknowledged that the gravity of the infringement should be assessed on an individual basis and the range should be somewhere between 0 and 30% of the value of the sales, it held that secret agreements on prices (including agreements on false quotes or “cover quotes”) and market sharing constitute a "very serious" infringement. The Commission 2006 Fining Guidelines clarify that in such a case, the proportion of the value of sales taken into account will generally be set "at the higher end of the scale". As the Commission and the General Court had established that the current cases concern these types of agreements, they did not have to provide more explanation regarding the choice to apply a percentage of 17%, given that this is in the lower end of the upper scales. The Commission is thus allowed to base its decision solely on the intrinsic gravity of the infringement and is not forced to take into account other elements and circumstances.
With regard to the determination of the basic amount of the fine the Court also held, in the Team Relocations case, that the concept of the relevant ‘value of sales’ on which to apply the calculation of fines "cannot extend to encompassing sales made by the undertaking in questions which do not fall within the scope of the alleged cartel". However, at the same time, the Court warned that it would be contrary to the goals of Article 101 TFEU to interpret point 13 of the 2006 Guidelines "as applying only to the turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel". Such interpretation would amount to reward for being secretive.