On 4 July 2013, the European Court of Justice (“ECJ”) rendered a judgement in the Aalberts case (C-287/11 P). The appeal as initiated by the Commission was rejected in its entirety. As a result the over EUR 100 million fine imposed on a number of entities of the Aalberts group has now been annulled definitively.

In 2006, the Commission had fined a number of entities in the Aalberts group (“Aalberts”) for alleged participation in the Fittings cartel (COMP/F 1/38.121). In 2011 Aalberts had already been successful in contesting the Commission’s evidence that it had re-joined the cartel after the Commission had conducted inspections in 2001. The General Court ("GC") sided with Aalberts and quashed the Commission decision in relation to Aalberts. The GC held at the time that the Commission had insufficiently established that two subsidiaries of Aalberts had actually been involved in infringing behaviour after 2001.

Subsequently, the Commission appealed the GC’s judgement arguing, essentially, that the GC had “distorted” the evidence presented to it, inter alia, by failing to jointly assess various pieces of evidence pertaining to two Aalberts subsidiaries. As a second point, the Commission took issue with the fact that the GC had annulled the Commission decision in its entirety, whereas it should have at least upheld part of the fine in view of the participation by one of the Aalberts’ subsidiaries in an anti-competitive meeting. On the first point, AG Mengozzi actually agreed with the Commission in his Opinion of 28 February 2013.

The ECJ, however, rejects both arguments. On the first point the Court agrees with the Commission that the GC erred in law by examining whether the two Aalberts’ subsidiaries participated in the infringementseparately without first ruling on the issue whether these subsidiaries formed part of the same “undertaking”. The ECJ continues to note, however, that as long as other grounds remain to uphold the conclusions of the GC, such finding would have no consequences. Next, the ECJ notes that for the undertaking Aalberts to have infringed the competition rules, at least one of the Aalberts’ subsidiaries must be considered to have done so. This latter point was examined by the GC and established that this was not the case. In relation to the Commission’s arguments that the GC had distorted the evidence in the context of that latter assessment, the ECJ remains unconvinced. The Court notes that on the one hand the Commission asked for a re-assessment of evidence whereas such a factual assessment is only for the GC to conduct. On the other hand, it notes that there was no “clearly incorrect” assessment on the part of the GC warranting the conclusion that the GC “manifestly exceeded the limits of a reasonable assessment”. Consequently, the Court rejects the first appeal ground.

On the second point, the ECJ recalls that partial annulment of a decision is only possible if those elements that are to remain valid “can be severed from the remainder of the act”. The ECJ rejected the notion that this decision could be upheld in relation to the participation of one of the Aalberts subsidiaries in an alleged anti-competitive meeting, as the Commission had clearly identified a “single and continuous infringement” in its decision without specifying that the relevant meeting as such also qualified as an infringement. In contrast, the Commission had even noted in the decision that it would be “artificial” to split up the single and continuous infringement into separate infringements. Under those circumstances this element could not be severed from the annulled decision. Hence, also the second ground could not be successful.

This ECJ judgement marks the end of long lasting litigation and leads to the largest fine annulment ever based on the merits. In this sense it reconfirms the, perhaps increasingly, critical stance of the EU courts towards Commission fining decisions.