The General Court dismissed appeals in the heat stabilizers cartel

On 6 February 2014, the General Court ("GC") dismissed the appeals brought in the heat stabilizers cartel by AC-Treuhand AG, Arkema France and CECA SA, and Elf Aquitaine against the Commission. The Commission had fined 24 companies a total of almost EUR 174 million for conduct such as price fixing, allocating markets, and exchanging sensitive commercial information. Below is a brief synopsis of the relevant points in these judgments.

AC-Treuhand AG

The Commission decision had dealt with two separate cartels involving tin stabilizers and ESBO/esters. On appeal in case T-27/10, the GC confirmed the Commission findings and dismissed AC-Treuhand’s allegations that there was a single cartel infringement and that therefore the total fine exceeded 10% of its annual turnover and was a violation of Article 23(2) Regulation 1/2003. However, given that there were two separate cartels and each fine was under the 10% limit, the GC upheld the findings and the fine.

In reaching its decision, the GC looked at whether the Commission erred in finding that there were two separate cartel infringements. The GC looked at whether there had been a single objective and concluded that this was not the case since not all undertakings participated in the meetings for both sectors, and when they did, they were not represented by the same individuals. The GC furthermore concluded on the basis of the separate meetings that there could not have been a single product market for tin stabilisers and ESBO/ester. The GC finally moved on to analyse whether the two infringements were complementary. The GC held that this was not the case given that some undertakings in the tin stablizers cartel would have suffered negative consequences from the agreements in the ESBO/ester sector.

It is noteworthy that some of these characteristics, for example, different representatives and separate meetings, have actually been rejected in other cases where applicants sought to establish that the infringements were separate. However, in this case it appears sufficient for the GC to find that there were two separate infringements.

Regarding the fine, AC-Treuhand had been a previous addressee in 2003 of a Commission decision in the Organic Peroxides cartel. In that decision, the Commission had imposed only a symbolic fine given its role as facilitator. This time around, AC-Treuhand alleged that in failing to impose another symbolic fine, the Commission had committed error. The GC promptly dismissed the argument, stating that the previous symbolic fine should not create any legitimate expectations or set any precedent.

Arkema France and CECA

The GC also dismissed in its entirety the appeals (Joined Cases T-23/10 and T-24/10) brought by Arkema France and CECA (together the "Applicants").

The Applicants claimed that the Commission had infringed Article 7(1) of Regulation 1/2003 by finding that the Applicants participated in an infringement on the tin stabilisers market between March 1994 and March 1996. According to the last sentence of Article 7(1) of Regulation No 1/2003, the Commission may only find that an undertaking committed an infringement in the past if it has a legitimate interest for doing so. In its decision, the Commission explained the inclusion of the earlier infringement by stating that the Applicants at a later point in time returned to the same cartel. Furthermore, the finding was included to discourage repeat infringements of the Applicants and to enable injured parties to bring matters before national civil courts. The GC found the Commission's first reason in itself a sufficient legitimate interest for including the earlier infringement in the decision. According to the General Court, the Commission could have confined itself to a general assertion in this regard. Therefore, the Commission did not act in violation of Article 7(1) of Regulation No 1/2003.

Elf Aquitaine

In dismissing the appeal brought by Elf Aquitaine against the Commission's decision, the GC held (T-40/10) that Elf Aquitaine’s rights of defense had not been infringed for the sole reason that it was not informed of the investigation as from the first investigation towards its subsidiary.

The GC recalled that provided that the entity to which a statement of objections is addressed is put in a position to submit its views effectively during the administrative phase, the rights of defense do not require the Commission as a matter of principle to address a measure of investigation to that entity before issuing the statement of objections. However, the GC recognized that in some circumstances, some information on the object and purpose of the instruction may have to be given earlier, but Elf Aquitaine did not indicate sufficiently how its rights of defense were violated in concreto.

In addition, the GC held that the Commission had not erred in attributing liability to Elf Aquitaine as the ultimate parent of Arkema and CECA because it did not prove sufficiently and in concreto that it had no decisive influence on the commercial policy of these subsidiaries. The legal or economic autonomy of a company under national law are not relevant for this assessment. Finally, the GC found that it was permissible for the Commission to impose a separate fine on Elf Aquitaine and on Arkema (its subsidiary at the time of the infringement) and could increase the amount of the fine imposed on Elf Aquitaine only (and not for Arkema which was no longer part of the Elf group) in order to ensure that it had a sufficiently deterrent effect.