Antitrust Law Daily Wrap Up, ANTITRUST NEWS: European Court of Justice upholds cartel judgments, fines in bleaching agent sector, (Dec 6, 2013)

By John W. Arden, J.D., LL.M.

The Court of Justice of the European Community upheld cartel judgments against companies in the bleaching agent sector and confirmed fines as set by the General Court in June 2011, according to a December 5 announcement. The sector includes hydrogen peroxide, a strong oxidizing agent used in the paper and textile industries, and sodium perborate, mainly used as an active substance in synthetic detergents and washing powders.

In 2006, the European Commission decided that nine companies in the bleaching agent sector had participated in cartels and imposed fines totaling €388.13 on seven of the nine. The cartel consisted mainly of competitors exchanging confidential market and company information, limiting and controlling production, allocating market shares and customers, and fixing and monitoring prices between 1994 and 2000, according to the Commission.

The companies subject to the Commission order were Italian company Edison SpA and its subsidiary Solvay Solexis SpA; Italian company SNIA SpA and its subsidiary Caffaro SpA; Belgium company Solvay SA; and U.S. company FMC Corporation and its Spanish subsidiary FMC Foret SA. Participation of the French company L’Air Liquide SA in the cartel had ended more than five years before the Commission’s first investigative measures. Since the limitation period had expired, L’Air Liquide SA was not fined.

The companies brought actions before the General Court, which annulled the Commission’s decision with respect to L’Air Liquide SA and Edison. The court also reduced the fine imposed on Solvay, taking into account the reduced period of its participation in the cartel and its provision of information widely used in the decision.

The General Court dismissed the actions brought by Solvay Solexis, SNIA and its subsidiary Caffaro and by FMC Corporation and its subsidiary FMC Foret SA, maintaining the amount of their fines.

Solvay, Caffaro, SNIA, and Solvey Solexis brought various appeals before the Court of Justice, challenging the General Court’s decision. The Commission also brought an appeal, requesting that the Court of Justice set aside the General Court’s judgment regarding Edison.

In a December 5 judgment, the Court of Justice dismissed all appeals and confirmed all the fines set by the General Court. Specifically, the Court of Justice dismissed Solvey SA’s appeal of its €139.50 million fine; the appeal of the annulment of its decision with respect to Edison SpA and the dismissal of the action brought by Solvay Solexis; SNIA and Caffaro’s appeal of the dismissal of its actions; and the appeal of the dismissal of actions brought by Arkema and Total and Elf Aquitaine against the Commission.

The Court of Justice rejected Solvay’s claims that the General Court distorted the evidence by holding that the Commission had established that Solvay had discussed or exchanged information on prices and on its commercial strategy from May 1995 through August 1997. The alleged distortion was not obvious from the documents of the case and the General Court’s findings did not contain anything capable of suggesting that the facts or evidence were distorted in the first instance, the Court of Justice found. The holding of a “concerted practice” within the meaning of Article 81 CE was supported by the exchange of commercial information in a highly-concentrated oligopolistic market.

The Commission’s cross appeal, alleging serious errors of law in reducing the fine to Solvay, was also denied by the Court of Justice. Solvay had submitted a leniency application and the General Court did not infringe the principle of equal treatment in deciding in a coherent and objective manner to grant Solvay a 20% reduction of the fine amount, according to the Court.

Companies: Edison SpA; Solvay Solexis SpA; SNIA SpA; Caffaro SpA; Solvay SA; FMC Corporation: FMC Foret SA; L’Air Liquide SA

News: Antitrust