European Court of Justice gives guidance on the room for partial annulments in the context of so-called

It is established EU case law that a set of agreements and/or concerted practices may together constitute one single continuous infringement. In a recent case, the European Court of Justice ("ECJ") clarified what consequences should be attached to a finding that a company participated in some - but not all - of the practices constituting the single continuous infringement of the EU cartel prohibition (Case C-441/11).

In the present case, the Commission had fined Coppens for its participation in the Belgian international removal services cartel. According to the Commission, the participants in this cartel had concluded two sets of agreements, a bid rigging agreement ("cover quote agreement") and an agreement to financially compensate competitors that did not win a tender ("commissions agreement"). According to the Commission, together these agreements constituted one single and continuous infringement of Article 101 TFEU. However, Coppens had only participated in the cover quote agreement, not in the commissions agreement. On appeal the General Court found that Coppens could not be held accountable for participation in the single continuous infringement established by the Commission as this single infringement covered both agreements and Coppens could not be held liable for the whole. The General Court annulled the Commission decision vis-à-vis Coppens in its entirety.

The Commission appealed and argued that the General Court should have partially annulled its decision. It argued that Coppens should not escape liability for its participation in the cover quote agreement. In its recent judgment, the ECJ confirmed the Commission's approach and held that partial annulment of Commission cartel decisions is justified when (i) the remaining decision does not change the essential substance of the original decision and (ii) the company's rights of defence are protected in the process, i.e. it must have been able to foresee that it was held liable for the more limited cartel infringement and it must have had the opportunity to defend itself effectively against the allegation thus constructed. The ECJ ruled that these conditions were fulfilled in Coppens.

After overturning the General Court's verdict, the ECJ also ruled on the appropriate fine. It reduced Coppens' fine from €104,000 to €35,000. Interestingly, it came to this amount by applying the Commission's Fining Guidelines. While the ECJ is not bound by the Commission Guidelines, it nevertheless was of the opinion that it would discriminate between cartel participants if it used a different method. As such the Commission Fining Guidelines effectively determine the outcome of the European Courts exercising their full jurisdiction in the area of fines.