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Bellamy & Child: European Union Law of Competition - Second Cumulative Supplement to the Seventh Edition edited by John, Laura Elizabeth; Turner, Jon (1st July 2015)

5 Cartels

Laura Elizabeth John
Edited By: Jon Turner QC

From: Bellamy & Child: European Union Law of Competition: Second Cumulative Supplement to the Seventh Edition

Edited By: Laura Elizabeth John, Jon Turner QC (Consultant Editor)

Subject(s):
Cartels — Restriction of competition — Concerted practices — Infringement cases — Fines imposed on cartels — Leniency Notice — Aggravating and mitigating circumstances — Regulation 1/2003 — Undertakings

(p. 69) Cartels

1.  An Overview

Cartels are an enforcement priority.

5.001 

Fn 1  In 2013 the Commission took four decisions, involving 19 undertakings or associations of undertakings, and imposed fines totaling €1.883 billion. The highest fine to date is that which was imposed on the participants in COMP/39437 TV and computer monitor tubes, decision of 5 December 2012, of €1.47 billion: Press Release IP/12/1317 (5 December 2012). The highest fine imposed on an undertaking for participation in a cartel remains COMP/39125 Car Glass, decision of 12 November 2008, where Saint Gobain was fined €715,000,000. The General Court reduced the fine on appeal in Joined Cases T-56&73/09 Saint Gobain (Car Glass), EU:T:2014:160 (see the update to paragraph 14.042, below).

(a)  The typical subject-matter of cartel activity

Restrictions ancillary to the cartel agreements.

5.006 

Fn 8  The Court of Justice dismissed the further appeal in Case C-266/06P Degussa v Commission [2008] ECR I-81.

Fn 9  The General Court dismissed the appeals against the Commission’s decision in COMP/39180 Aluminium Fluoride, decision of 25 June 2008, in Case T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902; and Case T-406/08 Industries chimiques du fluor v Commission, EU:T:2013:322 (on further appeal, Case C-467/13P, not yet decided).

Fn 10  The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas (p. 70) Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

Fn 14  The Court of Justice dismissed the further appeals against the decision in COMP/37766 Netherlands Beer Market, decision of 18 April 2007, in Case C-452/11P Heineken Nederland and Heineken v Commission, EU:C:2012:829; and C-445/11P Bavaria v Commission, EU:C:2012:828.

(b)  How cartels operate

The structure of cartels.

5.007  On the concepts of agreement and concerted practices, see also the updates to paragraphs 2.032 et seq, above.

Single continuous infringement.

5.008  The General Court’s approach in Case T-204&208/12 Team Relocations v Commission (International Removal Services) [2011] ECR II-3569, [2011] 5 CMLR 889 was upheld by the Court of Justice in Case C-444/11P Team Relocations v Commission, EU:C:2013:464, [2013] 5 CMLR 1335, at paras 51 et seq.

See also the updates to paragraphs 2.071 et seq, above.

Participation in a cartel.

5.009  On participation, and the circumstances in which an undertaking will be treated as having distanced itself from a cartel, see also the updates to paragraphs 2.079 et seq, above.

Liability of undertaking for the overall cartel.

5.010  On liability for cartel activities in which the undertaking did not directly participate, see also the updates to paragraphs 2.076 et seq, above.

Fn 27  The Court of Justice dismissed the further appeal on liability in Case C-70/12P Quinn Barlo v Commission (‘Methacrylates’), EU:C:2013:351, [2013] 5 CMLR 637.

Fn 28  The Courts have ruled on the appeals against the Commission decisions noted in the footnote.

The decision in COMP/39396 Calcium carbide and magnesium based reagents, decision of 22 July 2009, was largely upheld on appeal: the appeals were dismissed in Cases T-352/09 Novácke chemické závody v Commission, EU:T:2012:673, [2013] 4 CMLR 734; T-392/09 1. garantovana v Commission, EU:T:2012:674 (further appeal dismissed, Case C-90/13P 1. garantovana v Commission, EU:C:2014:326, [2014] 5 CMLR 79); T-400/09 Ecka Granulate v Commission, EU:T:2012:675; T-410/09 Almamet v Commission, EU:T:2012:676, [2013] 4 CMLR 788; Case T-399/09 HSE v Commission, EU:T:2013:647, [2014] CMLR 738; and Case T-384/09, T-384/09, SKW v Commission ECLI:EU:T:2014:27 (on further appeal, Case C-154/14P, not yet decided). The fines were reduced, but the appeals otherwise dismissed in Cases T-391/09 Evonik Degussa v Commission, EU:T:2014:22 (on further appeal, Case C-155/14, not yet decided); T-395/09 (p. 71) Gigaset v Commission, ECLI:EU:T:2014:23 and T-406/09 Donau Chemie v Commission, EU:T:2014:254.

The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

The appeals against the Commission’s decision in COMP/39180 Aluminium Fluoride, decision of 25 June 2008, were dismissed in Cases T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902; and Case T-406/08 Industries chimiques du fluor v Commission, EU:T:2013:322 (on further appeal, Case C-467/13P, not yet decided).

Cartel ‘consultancy’.

5.011 

Fn 30  The appeal in Case T-27/10 AC-Treuhand, EU:T:2014:59 was dismissed. The General Court followed its earlier judgment in Case T-99/04 AC-Treuhand, EU:T:2008:256, [2008] ECR II-1501, [2008] 5 CMLR 962, and held that the undertaking which has participated in collusive conduct can be held liable for an infringement of Article 101 even if it is not active on the market affected by the restriction of competition. See in particular paras 36–47. On further appeal, Case C-194/14P, not yet decided.

In addition, on 10 June 2014 the Commission sent a statement of objections to an undertaking which provides broker services, regarding its alleged facilitation of the infringements by various banks in respect of the benchmark for trading yen interest rate derivatives: COMP/39861 Yen Interest Rate Derivatives (‘YIRD’).

Fn 31  The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

The General Court largely dismissed five of the appeals against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434 (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of (p. 72) incorrect attribution of conduct by a joint venture). The other appeals are still pending.

Measures of concealment.

5.012  On the EU Courts’ approach to proving cartel-related infringements, see also the updates to Chapter 13, below.

Fn 33  The Court of Justice dismissed the undertakings’ further appeals in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

(c)  Arguments typically used to justify cartels

No effects.

5.013 

Fn 36  In the appeals against the Commission’s decision in COMP/38456 Dutch Bitumen, decision of 13 September 2006, the General Court reduced the fine imposed on Shell in Case T-343/06 Shell Petroleum v Commission, EU:T:2012:478, [2012] 5 CMLR 1064 (on further appeal in Case C-585/12P, not yet decided), and dismissed the other appeals, on other grounds, in Cases T-344/06, etc, EU:T:2013:258 (further appeal by Kuwait Petroleum in C-581/12P, not yet decided).

Fn 37  The General Court upheld the Commission’s decision in COMP/39188 Bananas, decision of 15 October 2008, in Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (reducing the fine but dismissing the appeal on liability) paras 305–308; and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, paras 67–71. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

In Case T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902, para 96, the General Court rejected an argument that implementation of an agreement, found by the Commission to have an anticompetitive object in COMP/39810 Aluminium Fluoride, decision of 25 June 2008, was ‘impossible’.

No interest in or benefit from the cartel.

5.014 

Fn 39  The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

(p. 73) Fn 40  The General Court upheld the Commission’s decision in COMP/39188 Bananas, decision of 15 October 2008, in Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (reducing the fine but dismissing the appeal on liability); and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

Fn 42  The General Court dismissed the appeals against the Commission’s decision in COMP/39810 Aluminium Fluoride, decision of 25 June 2008, in Case T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902; and Case T-406/08 Industries chimiques du fluor v Commission, EU:T:2013:322 (on further appeal, Case C-467/13P, not yet decided). In Fluorsid and Minment, at para 96, the General Court rejected an argument that implementation of an agreement found by the Commission to have an anti-competitive object was ‘impossible’, as it was not necessary to examine the effects of the agreement once its anti-competitive object had been established.

Fn 43  The General Court upheld the Commission’s decision in Bananas on other grounds: see the update to footnote 40 above.

Participation under compulsion.

5.015 

Fn 44  See also Case T-154/09 Manuli Rubber Industries v Commission (Marine Hoses), EU:T:2013:260, paras 182 et seq, in which the General Court rejected a contention that the undertaking maintained contact with the other cartelists in order to give the impression that it had an interest in re-launching the cartel, and to protect itself against reprisals. See also paras 233 et seq, in which it rejected a contention that this could bear upon the gravity of the infringement for the purpose of determining the percentage of relevant sales on which to set the fine, and paras 285 et seq in which it rejected the contention that the Commission should have considered this a factor mitigating the fine.

Fn 45  The Court of Justice dismissed the further appeal in Case C-447/11P Caffaro v Commission (Hydrogen peroxide and perborate), EU:C:2013:797. See, in particular, paras 30–31. See also T-406/09 Donau Chemie v Commission (Calcium Carbide), EU:T:2014:254, at para 110.

Fn 46  See also Case T-154/09 Manuli Rubber Industries v Commission (Marine Hoses), EU:T:2013:260, discussed in the update to footnote 44, above.

Not active on the cartelised market.

5.016  The General Court distinguished its judgment in Industrial Thread, discussed in the main text (Joined Cases T-456&457/05 Gütermann and Zwicky v Commission [2010] ECR II-1443) in Case T-380/10 Wabco Europe v Commission (Bathroom Fittings), EU:T:2013:449, [2014] 4 CMLR 138. Where the alleged cartel includes an exchange of commercially sensitive information, it is necessary that the recipient of the information (p. 74) be active on the cartelised market, such that there is potential for that recipient to modify its behaviour as a result of receiving the information, in order for the exchange to infringe Article 101. The Court emphasised at para 79 that:

‘it cannot be presumed that an agreement or a concerted practice whereby undertakings exchange information which is commercially sensitive but which relates to a product sold on a market on which they are not competitors has an anti-competitive object or effect on that market. A practice whereby an undertaking which is active on two distinct product markets provides to its competitors — which are present on one market — commercially sensitive information which relates to a second market — on which those competitors are not present — is not capable, in principle, of having an impact on competition on the second market.’

The Court held that its judgment in Joined Cases T-456&457/05 Gütermann and Zwicky v Commission [2010] ECR II-1443, relied upon by the Commission, would apply to a disclosure of commercially sensitive information with a view to restricting competition in the market on which the recipient of the information is active, by a disclosing party that is not itself active on that market; whereas in the decision under appeal, COMP/39092 Bathroom Fittings, decision of 23 June 2010, the Commission had (as the Court held, wrongly) found that the purpose of the disclosure was to restrict competition in a market on which the disclosing party was active but the recipient was not: see paras 98–99. See also Joined Cases T-379&381/10 Keramag Keramische Werke and Others (Bathroom Fittings) v Commission, EU:T:2013:457, paras 92 and 221 (on further appeal, Case C-613/13P, not yet decided).

Fn 47  The appeal in Case C-537/10P Deltafina v Commission, was withdrawn by Order of 12 July 2011.

Industry crisis.

5.017 

Fn 49  In Case T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902, para 96; and Case T-406/08 Industries chimiques du fluor v Commission, EU:T:2013:322 (on further appeal, Case C-467/13P, not yet decided) para 90, the General Court confirmed that the Commission did not need to prove the effects of the cartel found in COMP/39810 Aluminium Fluoride, decision of 25 June 2008. In Fluorsid and Minmet it rejected an argument that implementation of the agreement, found by the Commission to have an anti-competitive object, was ‘impossible’, as it was not necessary to examine the effects of the agreement once its anti-competitive object had been established.

Response to anti-competitive behaviour by other firms.

5.018  The Court of Justice confirmed in Case C-68/12 Protimonopolný úrad v Slovenská sporitel’ňa, EU:C:2013:71, [2013] 4 CMLR 491, paras 19–21, that if an agreement is intended to exclude a competitor from the relevant market, it is not relevant that that competitor had been operating on the market illegally. The Supreme Court of the Slovak Republic subsequently upheld the infringement decision of the Antimonopoly Office on 22 May 2013: ECN Brief 03/2013, p13.

(p. 75) Government connivance.

5.019  See also Case C-444/11P Team Relocations v Commission, EU:C:2013:464, [2013] 5 CMLR 1335, paras 148–150, in which the Court of Justice dismissed a complaint that the Commission had itself sought out cover prices from the cartelists.

Fn 52  The General Court largely dismissed five of the appeals, on other grounds, against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434, (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

Fn 53  See the update to footnote 52, above.

(d)  Investigation and enforcement

Information requests and inspections.

5.021  On the Commission’s powers to gather information and to conduct inspections, see also the updates to paragraphs 13.011 et seq, below.

The Leniency Notice.

5.022  A revised Model Leniency Programme was issued by the ECN in November 2012, and is available on DG Comp’s website. The main changes are that all undertakings applying to the Commission for leniency in cases concerning more than three Member States will be able to submit a summary application to national competition authorities, where previously only the first applicant, ie the immunity applicant, was entitled to use summary applications under the model leniency programme; and the ECN has agreed on a standard template for summary applications, which can be used in all Member States.

On the conditions for the grant of immunity under the Leniency Notice and the procedure for making an application, see also the updates to paragraphs 14.109 et seq, below.

Fn 59  The Court of Justice dismissed the further appeal in Case C-578/11P Deltafina v Commission, EU:C:2014:1460, [2014] 5 CMLR 599.

Fn 61  The ability of third parties to access leniency information from the Commission or from ECN members is proposed to be circumscribed in the proposed Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (Commission proposal for a Directive, COM(2013) 404 (p. 76) final, COD 2013/0185; text agreed by the Parliament and Council, TA/2014/451/P7) (‘Draft Damages Directive’). In particular, the proposals include:

  1. (a)  a complete prohibition on disclosure of leniency corporate statements and settlement submissions, together with a requirement that such information shall be inadmissible in a damages action before the national court where a party has obtained it through access to the file (or otherwise be given equivalent protection to ensure the effectiveness of the prohibition on disclosure): Articles 6(6) and 7(1) of the Draft Damages Directive;

  2. (b)  a temporary prohibition on disclosure of inter alia information prepared specifically for the purposes of proceedings before a competition authority, until after the proceedings are closed; together with a requirement that such information shall be inadmissible in a damages action before the national court, where a party has obtained it through access to the file, until after the proceedings before the competition authority are closed (or otherwise be given equivalent protection to ensure the effectiveness of the temporary prohibition on disclosure): Article 6(5) and 7(2) of the Draft Damages Directive.

The prohibitions are proposed in respect of documents/information relating to investigations by the Commission, as well as to investigations by national competition authorities.

Cartel settlement.

5.023 

Fn 65  See also COMP/39801 Polyurethane Foam, decision of 29 January 2014; COMP/39952 Power Exchanges, decision of 5 March 2014; COMP/39922 Automotive Bearings, decision of 19 March 2014; COMP/39792 Steel Abrasives, decision of 2 April 2014; and COMP/39965 Mushrooms, decision of 25 June 2014.

Fn 66  See also COMP/39861 Yen Interest Rate Derivatives (‘YIRD’), settlement decision of 4 December 2013, and subsequent statement of objections sent to an additional undertaking on 10 June 2014.

Proving the infringement.

5.024 

Fn 68  The Court of Justice dismissed the further appeal against the decision in COMP/37766 Netherlands Beer Market, decision of 18 April 2007, in Cases C-452/11P Heineken Nederland and Heineken v Commission, EU:C:2012:829; and C-445/11P Bavaria v Commission, EU:C:2012:828.

Fn 71  The General Court largely dismissed five of the appeals against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434, (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine (p. 77) reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

Admissibility and probative value of evidence.

5.025  The Court of Justice dismissed the undertakings’ further appeals in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606, discussed in the updates to paragraphs 5.027 and 5.028, below.

In Case T-286/09 Intel v Commission, EU:T:2014:547, [2014] 5 CMLR 270 the General Court held that a response to a request under Article 18 of Regulation 1/2003 from a third party undertaking that was a customer of the addressee of the decision (in that case, a dominant undertaking rather than a cartelist) is particularly reliable, in view of the risk of retaliatory measures that it faces from its supplier if it wrongly accuses it of anti-competitive conduct: see, eg paras 680 et seq.

Contemporaneous documents.

5.026 

Fn 80  The Court of Justice dismissed the further appeals against the decision in COMP/37766 Netherlands Beer Market, decision of 18 April 2007, in Cases C-452/11P Heineken Nederland and Heineken v Commission, EU:C:2012:829; and C-445/11P Bavaria v Commission, EU:C:2012:828.

Documents from one cartel participant incriminating another undertaking.

5.027  In Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606, the Court of Justice upheld the General Court’s conclusion that the leniency applicant’s evidence was credible and that the other cartelists’ evidence was less so as they had sought to deny the existence of the common understanding and therefore were not acting against their own interests: see para 145 of the judgment, and the update to paragraph 5.028, below. The Court dismissed the argument that evidence corroborating the contents of a leniency statement has to be contemporaneous documentation and cannot comprise other statements made with a view to obtaining leniency. The principle of unfettered evaluation of evidence precludes any such rule: paras 191–192.

Credibility of statements made by a leniency applicant.

5.028  In Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606, the Court of Justice dismissed as inadmissible a complaint that the General Court should not have relied upon the witness evidence of the leniency applicant because of ‘established knowledge relating to the functioning of the memory and the psychology of witnesses’, and the possibility that an individual may have had an interest in maximising the unlawful conduct of competitors and minimising their own liability. The Court’s powers to review findings of fact (discussed in paragraph 13.171 of the main text and the update thereto) do not extend to a review on this basis. The Court also upheld the General Court’s conclusion that the leniency applicant’s evidence was credible, in particular as (p. 78) its representative would have been aware of the potential negative consequences of submitting inaccurate information, and the applicant itself had acted against its own interests in applying for leniency because of the risk of damages actions being brought against it in national courts: paras 138 and 141. The Court also upheld the conclusion that evidence corroborating the contents of a leniency statement does not have to be contemporaneous documentation but can comprise other statements made with a view to obtaining leniency: para 191.

Fn 89  The General Court largely dismissed five of the appeals against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434 (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

On the economic benefits of submitting a leniency application, and the impact that it has on the credibility of the applicant that it obtains an economic benefit from securing leniency, see the discussion in the General Court’s judgment in Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, paras 86 et seq. Dole argued that the leniency application had been made in order to secure the completion of an acquisition by the leniency applicant of another company: the banks that had been asked to finance the acquisition had expressed concerns about the leniency applicant’s operations, and had only agreed to provide the financing once immunity had been granted. The General Court rejected the argument that this undermined the leniency applicant’s credibility. It held that ‘the existence of a personal interest in reporting the existence of a concerted practice does not necessarily mean that the person doing so is unreliable’: para 92. The existence of the banks’ concerns reinforced the credibility of the evidence that the cartel existed, and any economic benefits that the leniency applicant obtained as a result of being granted immunity had to be balanced against the exposure to third party damages actions that would arise as a result of its admissions: paras 93–94.

Fn 90  In Case T-462/07 Galp Energía España v Commission, EU:T:2013:459, [2014] 4 CMLR 272, paras 129 et seq the General Court dismissed a complaint that two leniency applicants appeared to have coordinated their applications.

Fn 91  The Court of Justice dismissed the further appeal in Case C-70/12P Quinn Barlo v Commission (‘Methacrylates’), EU:C:2013:351, [2013] 5 CMLR 637. (p. 79) See also the General Court’s judgment in Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, at para 91.

Fn 92  The Court of Justice dismissed the further appeal in Case C-70/12P Quinn Barlo v Commission (‘Methacrylates’), EU:C:2013:351, [2013] 5 CMLR 637.

Proof of duration of the cartel.

5.030  See, however, Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507, at paras 83–85, in which the General Court held that even if representatives of an undertaking did not participate in certain unlawful meetings nonetheless the undertaking could presumed throughout the period preceding those meetings to have taken account of information already exchanged with its competitors in determining its conduct on the market. It therefore upheld the Commission’s findings as to the duration of the cartel.

(e)  Sanctions and redress

The harm caused by cartels.

5.031 

Fn 100  In the appeals against the Commission’s decisions referred to in the footnote.The General Court upheld the Commission’s decision in COMP/39188 Bananas, decision of 15 October 2008, and rejected the contention that it was necessary to show the infringement had led to higher prices for consumers: Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091, paras 459–460; and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, paras 64–65. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

The General Court reduced the fine on appeal in Joined Cases T-56&73/09 Saint Gobain (Car Glass), EU:T:2014:160 (see the update to paragraph 14.042, below), against the decision in COMP/39125 Car Glass, decision of 12 November 2008. The other appeals are not yet decided.

Fines—overview.

5.032  The approach of the General Court in the appeals against the Commission’s decision in COMP/38543 International Removals Services, decision of 11 March 2008, was upheld by the Court of Justice in Case C-444/11P Team Relocations v Commission, EU:C:2013:464, [2013] 5 CMLR 1335, paras 139–141.

Following the judgment in Case C-226/11 Expedia Inc, EU:C:2012: 795, [2013] 4 CMLR 439, paras 36–37, in which the Court of Justice held that an agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition, the Commission has adopted a revised De Minimis Notice: OJ 2014 C291/1. The revised Notice does not cover agreements which have as their object the prevention, restriction or distortion of competition within the internal market: para 2. The Commission has issued Guidance (p. 80) on restrictions of competition ‘by object’ for the purpose of defining which agreements may benefit from the De Minimis Notice (SWD(2014) 198 final).

See also the updates to Chapter 14, below.

Deterrence.

5.033  On the uplift of fines for deterrence, see also the update to paragraph 14.071, below.

Repeat infringements and other aggravating factors.

5.034  On recidivism and other aggravating factors, see also the updates to paragraphs 14.040 et seq, below.

Fn 110  In Case C-508/11P Commission v Eni, EU:C:2013:289, [2013] 5 CMLR 607, the Court of Justice dismissed the Commission’s appeal against the General Court’s judgment in Case T-39/07 ENI v Commission, [2011] ECR II-4457. The Commission issued a second statement of objections to Eni and Versalis on 1 March 2013, providing the explanation held by the General Court to have been absent from the decision in COMP/38638 Butadeine Rubber and Emulsion Styrene Butadeine Rubber, decision of 29 November 2006, [2009] 4 CMLR 421 (namely of the capacity in which, or extent to which, the undertaking was considered to have participated in a previous infringement) and reaching the provisional conclusion that an uplift should be imposed for recidivism: COMP/40032 BR/ESBR Recidivism, Press Release IP/13/179 (1 March 2013). The decision to initiate the procedure in COMP/40032 is on appeal in Case T-210/13 Versalis v Commission, and Case T-211/13 Eni v Commission, not yet decided.

Joint and several liability for payment of the fine.

5.035  In Joined Cases C-231/11P, etc, Commission v Siemens and others, EU:C:2014:256, [2014] 5 CMLR 7, at paras 55 et seq the Court of Justice overturned the General Court’s judgment that the Commission’s powers to determine the fine to be imposed on different infringing undertakings, under Article 23(2) of Regulation 1/2003, includes the power exclusively to determine the proportions that particular legal entities within an undertaking should contribute towards payment of that fine. The Court held that although the Commission must necessarily address its decision to particular legal entities, its powers do not extend to determining the shares to be paid by different legal entities within an undertaking. It stated at para 58:

‘While it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, since they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends, beyond the determination of joint and several liability from an external perspective, to the power to determine the shares to be paid by those held jointly and severally liable from the perspective of their internal relationship.’

This determination is a matter for the national courts, applying national law to the dispute in a manner consistent with EU law.

(p. 81) On joint and several liability, see also the updates to paragraphs 14.086, below.

Criminal sanctions.

5.036  The Enterprise and Regulatory Reform Act 2013 entered into force in April 2014. Section 47 amends s 188 of the Enterprise Act 2002 to remove the dishonesty requirement from the cartel offence, and adds ss 188A and 188B to clarify the circumstances in which the offence is committed. These provide:

  1. (a)  Under s 188A, parties to an arrangement that would otherwise be within the scope of the offence may bring the arrangement outside the scope, if they satisfy certain notification requirements. These are: (a) the notification exclusion (under the terms of the arrangement customers would be given relevant information about the arrangements before they enter into agreements for the supply to them of the product or service affected); (b) the bid-rigging notification exclusion (the person requesting bids would be given relevant information about the arrangements at or before the time when a bid is made); or (c) the publication exclusion (relevant information about the arrangement would be published, before the arrangements are implemented, in the manner specified at the time of the making of the agreement in an order made by the Secretary of State). ‘Relevant information’ for the purpose of these exclusions is defined as the names of the undertakings to which the arrangements relate; a description of the nature of the arrangements which is sufficient to show why they are or might be arrangements which fall within the scope of the offence; the products or services to which they relate; and any other information as may be specified in an order made by the Secretary of State.

  2. (b)  Under s 188B, three statutory defences are created. These are: (a) where the arrangements would affect supply in the UK, the individual did not intend that the nature of the arrangements would be concealed from customers before they enter into agreements for the supply to them of the product or service; (b) the individual did not intend that the nature of the arrangements would be concealed from the Competition and Markets Authority; (c) before making the agreement, the individual took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers, for the purpose of obtaining advice about them before they were made or implemented.

Private actions for damages arising from cartel activity.

5.037  At the time of writing, the proposed Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (Commission proposal for a directive, COM(2013) 404 final, COD 2013/0185; text agreed by the Parliament and Council, TA/2014/451/P7) (‘Draft Damages Directive’), is expected to be approved shortly. The detailed proposals are discussed in the updates to Chapter 16, below.

(p. 82) In respect of the issue of identifying potential defendants, noted in sub-paragraph (a) of the main text, see also the updates to paragraphs 16.023 et seq, below.

In respect of the issue of quantification of loss, noted in sub-paragraph (b) of the main text, the Commission has adopted a Communication on quantifying harm in actions for damages based on breaches of Article 101 or 102 TFEU (COM(2013) 3440, OJ 2013 C167/19), and an accompanying Practical Guide (SWD(2013) 205) (‘Quantification Guide’), alongside the draft Damages Directive. The details of the guidance are discussed in the updates to paragraph 16.077 et seq, below.

In respect of the issue of ‘passing-on’, noted in sub-paragraph (c) of the main text, see also the updates to paragraphs 16.087 et seq, below.

2.  Prices and Pricing Restrictions

Effect of price-fixing on prices.

5.040 

Fn 126  The General Court upheld the Commission’s decision in COMP/39188 Bananas, decision of 15 October 2008, and applied the approach laid down in Case C-8/08 T-Mobile v Netherlands [2009] ECR I-4529, in Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (reducing the fine but dismissing the appeal on liability), paras 459–460; and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, paras 64–65. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

Fn 131  On this aspect of the Commission’s decision in particular, see Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091, paras 305–308; and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130, paras 67–71. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

Price-fixing.

5.041  The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, discussed in the main text, were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

Fn 135  The OFT’s decision in Dairy Retail Prices Initiative, of 26 July 2011, was partially annulled on appeal by the Competition Appeal Tribunal, in Tesco v OFT [2012] CAT 31.

Fn 141  See also Joined Cases T-379&381/10 Keramag Keramische Werke and Others v Commission (‘Bathroom Fittings’), EU:T:2013:457, paras 59 et seq. (on (p. 83) further appeal, Case C-613/13P, not yet decided). The General Court confirmed that the coordination of indicative list prices is an object infringement.

Fn 144  See also BA/Virgin, OFT decision of 19 April 2012, where the parties notified each other of their intentions to increase fuel surcharges, prior to those increases being announced publicly.

Agreement to fix recommended or maximum prices.

5.042  As well as the forms of ‘recommended’ prices noted in the main text, coordination of indicative list prices is an infringement by object, as list prices serve as a starting point for subsequent price negotiations: Joined Cases T-379&381/10 Keramag Keramische Werke and Others v Commission (‘Bathroom Fittings’), EU:T:2013:457, paras 59 et seq (on further appeal, Case C-613/13P, not yet decided).

Elements added to price.

5.043 

Fn 158  The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

Common approaches to prices and structures.

5.044  Coordination of indicative list prices is an infringement by object, as list prices serve as a starting point for subsequent price negotiations: Joined Cases T-379&381/10 Keramag Keramische Werke and Others v Commission (‘Bathroom Fittings’), EU:T:2013:457, paras 59 et seq (on further appeal, Case C-613/13P, not yet decided).

Other contractual provisions related to pricing.

5.045 

Fn 162  The Commission’s decisions in COMP/39847 E-books, decision of 12 December 2012 (OJ 2012 C283/7), and of 25 July 2013 (Press Release IP/13/746 (25 July 2013)) accepted commitments from five publishing companies, and Apple, inter alia not to enter into most favoured nation clauses for five years. The UK’s OFT, and the German Bundeskartellamt, have closed their investigations into Amazon’s pricing clauses, after Amazon agreed to remove these clauses from its contracts (ECN Brief 05/2013, p30). The Bundeskartellamt has found that most favoured nation pricing clauses in contracts between a hotel booking platform and hotels breach Article 101 and national competition law (on appeal to the Düsseldorf Higher Regional Court): ECN Brief 01/2014, p6.

See also M.6458 Universal Music Group/EMI Music (21 September 2012), in which the Commission cleared a merger upon Universal committing inter alia not to include most favoured national clauses in its licensing agreements with digital music services in the EEA for five years.

Price transparency.

5.046  The General Court upheld the Commission’s decision in COMP/39188 Bananas, decision of 15 October 2008, in Case T-587/08 (p. 84) Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (reducing the fine but dismissing the appeal on liability); and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

In Case C-455/11P Solvay v Commission, EU:C:2013:796, [2014] 4 CMLR 581, at paras 39 et seq, the Court of Justice held that in a highly concentrated oligopolistic market the exchange of commercial information between competitors will itself allow operators to know the market positions and strategies of their competitors, and the exchange of such information in preparation for an anti-competitive agreement therefore suffices to prove the existence of a concerted practice. It is not necessary to establish that the competitors formally undertook to adopt a particular course of conduct, or that the competitors colluded over their future conduct on the market.

Fn 168  See also BA/Virgin, OFT decision of 19 April 2012.

Price agreements among distributors.

5.047 

Fn 174  The test laid down by the Court of Appeal in Argos & Littlewoods and JJB Sports v Office of Fair Trading [2006] EWCA Civ 1318 was applied by the Competition Appeal Tribunal in Tesco v OFT [2012] CAT 31, which discusses in detail the state of mind required to satisfy the test.

See also the decisions of the Hungarian Competition Authority in Case Vj-115/2010 W&H Dentalwerk Bürmoos, and of the Romanian Competition Council, finding breaches of Article 101 by the manufacturers of dental equipment and their distributors, where the resale price charged by distributors was monitored by the manufacturer, and selling below the recommended retail price led to distributors being excluded from the distribution network: Hungarian Competition Authority decision, see ECN Brief 01/2014, p6; Romanian Competition Council decision, see ECN Brief 02/2014, p5.

Fixing of purchase prices.

5.052 

Fn 191  The further appeal against Case T-38/05 Agroexpansion [2011] ECR II-7005 was dismissed by the Court of Justice in Case C-668/11P Alliance One International v Commission, EU:C:2013:614. The further appeal against Case T-41/05 Dimons [2011] ECR II-7101 was dismissed in Case C-679/11P Alliance One International v Commission, EU:C:2013:606, [2014] 4 CMLR 249.

Fn 192  The Court of Justice dismissed the further appeal in Case C-578/11P Deltafina v Commission, EU:C:2014:1460, [2014] 5 CMLR 599; and the further appeal in Case C-593/11P Alliance One International was dismissed as manifestly unfounded in part, and inadmissible in part, by Order of 13 December 2012. The Court of Justice upheld the appeal in Case C-652/11P Mindo, EU:C:2013:229, [2013] 4 CMLR 1, and has referred the case back to the General Court (remitted (p. 85) case not yet decided). The further appeal in Case C-654/11P Transcatab was dismissed by Order of 13 December 2012.

Resale price maintenance for books.

5.054 

Fn 200  The Commission’s decisions in COMP/39847 E-books, decision of 12 December 2012 (OJ 2012 C283/7), and of 25 July 2013 (Press Release IP/13/746 (25 July 2013)), accepted commitments from five publishing companies, and Apple, under which the undertakings agreed to terminate their agency agreements, to allow retailers full discretion to set their e-book prices for at least two years, and not to enter into most favoured nation clauses for five years. The UK’s OFT, and the German Bundeskartellamt, have closed their investigations into Amazon’s pricing clauses, after Amazon agreed to remove these clauses from its contracts (ECN Brief 05/2013, p30).

Price-fixing and Article 101(3).

5.057  The General Court has ruled on appeals against the two Commission decisions referred to in the main text.

In respect of COMP/39181 Candle Waxes, decision of 1 October 2008, the General Court largely dismissed five of the appeals, on other grounds: Case T-548/08 Total v Commission, EU:T:2013:434, (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

In respect of COMP/39188 Bananas, decision of 15 October 2008, the General Court dismissed the appeal on liability, on other grounds, in Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (fine reduced); and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

Fn 206  The Court of Justice dismissed the further appeal in Case C-382/12P MasterCard v Commission, EU:C:2014:2201.

Fn 208  In the appeals, on other grounds, in Joined Cases T-56&73/09 Saint Gobain (Car Glass), EU:T:2014:160, against the decision in COMP/39125 Car Glass, decision of 12 November 2008, the General Court reduced the fine but otherwise dismissed the appeal (see the update to paragraph 14.042, below). The other appeals are not yet decided.

(p. 86) Relevance of legislative price controls.

5.059 

Fn 219  The General Court largely dismissed five of the appeals, on other grounds, against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434, (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

3.  Output Restrictions

Limitation of output and production.

5.060 

Fn 221  The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

Fn 223  The decision in COMP/39396 Calcium carbide and magnesium based reagents, decision of 22 July 2009, was largely upheld on appeal: the appeals were dismissed in Cases T-352/09 Novácke chemické závody v Commission, EU:T:2012:673, [2013] 4 CMLR 734; T-392/09 1. garantovana v Commission, EU:T:2012:674 (further appeal dismissed, Case C-90/13P 1. garantovana v Commission, EU:C:2014:326, [2014] 5 CMLR 79); T-400/09 Ecka Granulate v Commission, EU:T:2012:675; T-410/09 Almamet v Commission, EU:T:2012:676, [2013] 4 CMLR 788; T-399/09 HSE v Commission, EU:T:2013:647, [2014] CMLR 738; and T-384/09 SKW v Commission ECLI:EU:T:2014:27 (on further appeal, Case C-154/14P, not yet decided). The fines were reduced, but the appeals otherwise dismissed in Cases T-391/09 Evonik Degussa v Commission, EU:T:2014:22 (on further appeal, Case C-155/14, not yet decided); T-395/09 Gigaset v Commission, ECLI:EU:T:2014:23; and T-406/09 Donau Chemie v Commission, EU:T:2014:254.

(p. 87) 4.  Market-sharing and Customer Allocation

(a)  Generally

Market-sharing.

5.065 

Fn 238  The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

Fn 241  The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, discussed in the main text were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

In the appeals, on other grounds, in Joined Cases T-56&73/09 Saint Gobain (Car Glass), EU:T:2014:160, against the decision in COMP/39125 Car Glass, decision of 12 November 2008 the General Court reduced the fine but otherwise dismissed the appeal (see the update to paragraph 14.042, below). The other appeals are not yet decided.

Market-sharing between producers.

5.066 

Fn 242  See also COMP/39839 Telefónica and Portugal Telecom, decision of 23 January 2013, concerning an agreement under which the parties agreed not to compete in the Iberian pensinsula, following the acquisition by Telefónica of the Brazilian mobile operator, Vivo, which until then had been jointly owned by Telefónica and Portugal Telecom (on appeal, Case T-208/13 Portugal Telecom v Commission; and Case T-216/13 Telefónica v Commission, not yet decided).

Fn 244  See also COMP/39839 Telefónica and Portugal Telecom, decision of 23 January 2013, referred to in the update to footnote 242, above.

The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, (p. 88) above. The General Court largely dismissed five of the appeals against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434 (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

The findings of infringement in COMP/39406 Marine Hoses, decision of 28 January 2009, were also upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

The Commission’s decision in COMP/39129 Power Transformers, decision of 7 October 2009, was upheld in Case T-519/09 Toshiba v Commission, EU:T:2014:263, [2014] 5 CMLR 219 (on further appeal, Case C-373/14P, not yet decided).

Fn 245  The decision in COMP/39396 Calcium carbide and magnesium based reagents, decision of 22 July 2009, was largely upheld on appeal: the appeals were dismissed in Cases T-352/09 Novácke chemické závody v Commission, EU:T:2012:673, [2013] 4 CMLR 734; T-392/09 1. garantovana v Commission, EU:T:2012:674 (further appeal dismissed, Case C-90/13P 1. garantovana v Commission, EU:C:2014:326, [2014] 5 CMLR 79); T-400/09 Ecka Granulate v Commission, EU:T:2012:675; T-410/09 Almamet v Commission, EU:T:2012:676, [2013] 4 CMLR 788; T-399/09 HSE v Commission, EU:T:2013:647, [2014] CMLR 738; and T-384/09 SKW v Commission ECLI:EU:T:2014:27 (on further appeal, Case C-154/14P, not yet decided). The fines were reduced, but the appeals otherwise dismissed in Cases T-391/09 Evonik Degussa v Commission, EU:T:2014:22 (on further appeal, Case C-155/14, not yet decided); T-395/09 Gigaset v Commission, ECLI:EU:T:2014:23; and T-406/09 Donau Chemie v Commission, EU:T:2014:254.

Fn 247  The Commission’s decision in COMP/39129 Power Transformers, decision of 7 October 2009, was upheld in Case T-519/09 Toshiba v Commission, EU:T:2014:263, [2014] 5 CMLR 219 (on further appeal, Case C-373/14P, not yet decided).

Market-sharing between purchasers.

5.068 

Fn 249  The further appeal against Case T-38/05 Agroexpansion [2011] ECR II-7005 was dismissed by the Court of Justice in Case C-668/11P Alliance One (p. 89) International v Commission, EU:C:2013:614. The further appeal from the General Court’s judgment in Case T-41/05 Dimons [2011] ECR II-7101 was dismissed in Case C-679/11P Alliance One International v Commission, EU:C:2013:606, [2014] 4 CMLR 249.

Fn 250  The Court of Justice dismissed the further appeal in Case C-578/11P Deltafina v Commission, EU:C:2014:1460, [2014] 5 CMLR 599.

Market-sharing and trade with third countries.

5.072  The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

See also the General Court’s judgment in Case T-519/09 Toshiba v Commission, EU:T:2014:263, [2014] 5 CMLR 219, against the Commission’s decision in COMP/39129 Power Transformers, decision of 7 October 2009 (on further appeal, Case C-373/14P, not yet decided).

Market-sharing under Article 101(3).

5.073 

Fn 266  The appeal, on other grounds, in Case T-519/09 Toshiba v Commission (Power Transformers), EU:T:2014:263, [2014] 5 CMLR 219 against the decision in COMP/39129 Power Transformers, decision of 7 October 2009, was dismissed (on further appeal, Case C-373/14P, not yet decided).

The General Court largely dismissed five of the appeals, on other grounds, against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434 (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

(c)  Vertical arrangements between competitors

Market division by intellectual property rights.

5.081  On 21 March 2014 the Commission adopted Regulation 316/2014 on the application of Article 101(3) (p. 90) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements, OJ 2014 L93/17. It entered into force on 1 May 2014, and replaces Regulation 772/2004 which expired on 30 April 2014. The new Regulation is discussed in the updates to Chapter 9, below.

(d)  Customer allocation

Customer allocation.

5.083 

Fn 292  The General Court has ruled on appeals against a number of the decisions referred to in the footnote:

The General Court largely dismissed five of the appeals against COMP/39181 Candle Waxes, decision of 1 October 2008: Case T-548/08 Total v Commission, EU:T:2013:434 (on further appeal, Case C-597/13P, not yet decided); Case T-566/08 Total Raffinage Marketing, EU:T:2013:423 (fine reduced on grounds of duration) (on further appeal, Case C-634/13P, not yet decided); Case T-540/08 Esso v Commission, EU:T:2014:630, [2014] 5 CMLR 507 (fine reduced on grounds of duration of involvement of entities that merged during the infringement period); Case T-541/08 Sasol v Commission, EU:T:2014:628, [2014] 5 CMLR 729 (fine reduced on grounds of incorrect attribution of conduct by a joint venture); and Case T-543/08 RWE v Commission, EU:T:2014:627 (fine reduced on grounds of incorrect attribution of conduct by a joint venture). The other appeals are still pending.

The decision in COMP/39396 Calcium carbide and magnesium based reagents, decision of 22 July 2009, was largely upheld on appeal: the appeals were dismissed in Cases T-352/09 Novácke chemické závody v Commission, EU:T:2012:673, [2013] 4 CMLR 734; T-392/09 1. garantovana v Commission, EU:T:2012:674 (further appeal dismissed, Case C-90/13P 1. garantovana v Commission, EU:C:2014:326, [2014] 5 CMLR 79); T-400/09 Ecka Granulate v Commission, EU:T:2012:675; T-410/09 Almamet v Commission, EU:T:2012:676, [2013] 4 CMLR 788; T-399/09 HSE v Commission, EU:T:2013:647, [2014] CMLR 738; and T-384/09 SKW v Commission ECLI:EU:T:2014:27 (on further appeal, Case C-154/14P, not yet decided). The fines were reduced, but the appeals otherwise dismissed in Cases T-391/09 Evonik Degussa v Commission, EU:T:2014:22 (on further appeal, Case C-155/14, not yet decided); T-395/09 Gigaset v Commission, ECLI:EU:T:2014:23 and T-406/09 Donau Chemie v Commission, EU:T:2014:254.

5.  Information Exchange

Information exchange ancillary to a cartel.

5.085  The General Court has ruled on a number of appeals against the decisions referred to in the main text. In respect (p. 91) of COMP/39406 Marine Hoses, decision of 28 January 2009, the General Court upheld the Commission’s findings of infringement in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided). In respect of COMP/39188 Bananas, decision of 15 October 2008, the General Court upheld the decision in Case T-587/08 Fresh Del Monte Produce v Commission, EU:T:2013:129, [2013] 4 CMLR 1091 (reducing the fine but dismissing the appeal on liability); and Case T-588/08 Dole Food Company v Commission, EU:T:2013:130. In Dole in particular the General Court upheld the distinction the Commission had drawn between infringements by object and effect, based on whether the information was exchanged before or after transaction prices were set. On further appeal, Cases C-293&294/13P Fresh Del Monte Produce v Commission, not yet decided; and Case C-286/13P Dole Food Company v Commission, not yet decided.

The General Court has emphasised that in order for the exchange of sensitive information to constitute a breach of Article 101, the undertakings concerned must be competitors in the relevant product market, such that there is potential for the recipient of the information to modify its conduct as a result of having received that information. In appeals against the Commission’s decision in COMP/39092 Bathroom Fittings, decision of 23 June 2010, which concerned a single and continuous infringement across three separate product markets, the General Court held that:

‘it cannot be presumed that an agreement or a concerted practice whereby undertakings exchange information which is commercially sensitive but which relates to a product sold on a market on which they are not competitors has an anti-competitive object or effect on that market. A practice whereby an undertaking which is active on two distinct product markets provides to its competitors — which are present on one market — commercially sensitive information which relates to a second market — on which those competitors are not present — is not capable, in principle, of having an impact on competition on the second market.’

See Case T-380/10 Wabco Europe v Commission (Bathroom Fittings), EU:T:2013:449, [2014] 4 CMLR 138, paras 78 et seq; and Joined Cases T-379&381/10 Keramag Keramische Werke and Others (Bathroom Fittings) v Commission, EU:T:2013:457, paras 92 and 221 (on further appeal, Case C-613/13P, not yet decided).

Fn 295  In Case T-404/08 Fluorsid and Minmet v Commission, EU:T:2013:321, [2013] 5 CMLR 902, para 94; and Case T-406/08 Industries chimiques du fluor v Commission, EU:T:2013:322 (on further appeal, Case C-467/13P, not yet decided), paras 88 and 106, the General Court upheld the Commission’s decision in COMP/39810 Aluminium Fluoride, decision of 25 June 2008, in respect of the exchange of information.

(p. 92) 6.  Collective Exclusive Dealing

(b)  Joint tendering and bid-rigging

Generally.

5.090 

Fn 312  See also COMP/39748 Automotive Wire Harnesses, decision of 10 July 2013, Press Release IP/13/673 (10 July 2013).

The Commission’s findings of infringement in COMP/39406 Marine Hoses, decision of 28 January 2009, were upheld in Case T-146/09 Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

The Court of Justice dismissed the undertakings’ further appeals against the decision in COMP/38899 Gas Insulated Switchgear, decision of 24 January 2007, in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606; and the appeal, on other grounds, in Case C-247/11P Areva v Commission, EU:C:2014:257, [2014] 4 CMLR 31. The Commission’s appeal in Joined Cases C-239/11P, etc, Siemens v Commission (Gas Insulated Switchgear), EU:C:2013:866, [2014] 4 CMLR 606 was upheld: see the update to paragraph 2.024, above.

The further appeal against COMP/38823 Elevators and Escalators, decision of 21 February 2007, in Case C-493/11P, etc, United Technologies, was dismissed as partly inadmissible, and partly clearly unfounded, by Order of 15 June 2012.

In the further appeals against the Commission’s decision in COMP/38543 International Removals Services, decision of 11 March 2008, the Court of Justice in Case C-441/11P Commission v Verhuizingen Coppens, EU:C:2012:778, [2013] 4 CMLR 312 reversed the General Court’s judgment, holding that it had erred in annulling the decision in its entirety. The Court instead upheld the Commission’s decision in respect of Coppens’ participation in cover pricing, and annulled it partially. The Court dismissed the further appeals in Case C-439/11P Ziegler v Commission, EU:C:2013:513, [2013] 5 CMLR 1217; and Case C-444/11P Team Relocations v Commission, EU:C:2013:464, [2013] 5 CMLR 1335.

Bid-rigging.

5.091  The Commission’s findings of infringement in decision COMP/39406 Marine Hoses, decision of 28 January 2009, were upheld in Cases T-146/09, etc, Parker ITR and Parker-Hannifin v Commission (Marine Hoses), EU:T:2013:258, [2013] 5 CMLR 712 (on further appeal, Case C-434/13P Commission v Parker Hannifin Manufacturing and Parker-Hannifin, not yet decided).

Fn 318  On 26 February 2014, three new directives on public procurement were adopted: Directive 2014/24 on public procurement and repealing Directive (p. 93) 2004/18/EC (OJ 2014 L94/65); Directive 2014/25 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L94/243); and Directive 2014/23 on the award of concession contracts (OJ 2014 L94/1). They entered into force on 17 April 2014.

Fn 319  The Danish Competition and Consumer Authority published guidelines on fighting bid rigging in public procurement 29 November 2012: ECN Brief 01/2013, p22.

Cover pricing.

5.093 

Fn 323  The Court of Justice in Case C-441/11P Commission v Verhuizingen Coppens, EU:C:2012:778, [2013] CMLR 312, set aside the General Court’s judgment, and instead annulled the Commission decision only in respect of Verhuizingen Coppens’ participation in the cartel activities beyond cover pricing, and the attribution to it of a single and continuous infringement.(p. 94)