In 2008 the National Competition Commission (“NCC”) exposed a series of agreements between shower gel producers, under which they agreed to progressively reduce the size of shower gel containers while maintaining the same price. Colomer participated in the first of these meetings where they discussed the possibility of reducing the size of the containers, although it took a passive role and there was no evidence of its involvement in any other meetings.
Despite the resolution proposal issued by the Investigations Directorate (“ID”) recommending that the case against Colomer be shelved, the Council of the NCC was not convinced that the company’s involvement in the first meeting was not an infringement of competition law. However, as the 18-month term that the NCC had to resolve the case was about to lapse, the Council decided to close the case and impose sanctions on the other companies involved (the “Shower Gel Decision”), and ordered the ID to initiate new proceedings against Colomer to investigate its role in the cartel.
In the new proceedings against Colomer, and in a move away from the ID’s opinion, the Council of the NCC imposed a fine of EUR 170,300 on Colomer for its involvement in the cartel’s first meeting (the “Colomer Decision”).
The Spanish National Court (Audiencia Nacional) issued its decisions on Colomer’s appeals against the Colomer Decision and the Shower Gel Decision on 2 April and 28 June 2013, respectively. Both judgments contain important declarations on the application of competition law, both from a procedural and substantive perspective.
In its ruling of 28 June 2013, the National Court emphasised that public bodies are subject to the principle of legality (that is, the principle that every offence must have a legal basis) and must only act within the scope of their statutory powers. As the Council of the NCC did not have legal grounds to order the opening of a new case to deal with a subject-matter that had already been settled, the National Court annulled the ruling in the Shower Gel Decision that a new case should be opened against Colomer.
The merits of the case (regarding Colomer’s liability) were decided by the National Court on 2 April 2013.
The National Court’s interpretation of the concept of “cartel” is particularly important. It held that “a consensus or an express agreement is an essential element for a cartel to exist”. The court found that there was no such no consensus or agreement by Colomer in this case since it took a passive role in the only meeting it attended. The Colomer Decision was thus fully annulled.