European Union - Cartel offence

Lucite International Ltd and another v European Commission: General Court of the European Union (Fourth Chamber) (Judges Forwood, President, Labucka (Rapporteur) and O'Higgins): 15 September 2011

The first applicant was the parent company of 30 acrylic producers. The second applicant was a subsidiary of the first and was the main producer of methacrylates in the first applicant's group of companies. By a decision of May 2006, the Commission found that a number of anti-competitive agreements and concerted practices in the methacrylates industry had infringed article 81 EC and article 53 of the Agreement on the European Economic Area.

The decision applied to a number of companies including the applicants. The Commission granted a partial immunity to the appellants, based on their co-operation with the production of evidence in the case. The appellants appealed. The Commission sought to have the partial immunity withdrawn.

The appellants submitted that the Commission had miscalculated the starting amount of the fine: in particular in the application of differential treatment and the circumstances referred to in the response to the statement of objections. They contended that the failure to take those factors into account constituted a failure to state reasons which vitiated the contested decision and infringed the Guidelines.

They submitted that although they had been involved in the cartel, the Commission had failed to take into account a number of extenuating circumstances, in that they had unwittingly 'inherited' their membership of the cartel by purchasing companies previously involved in it (the new companies), and that therefore their involvement had been very limited, and that the commercial policy put into effect by the appellants shortly after acquiring the new companies had been decisive in undermining the cartel, with the result that their role in the cartel had been quite different from that of other participants.

They contended that, first, those circumstances were relevant for determining the starting amount of the fine and that, secondly, if they had not been taken into account at that stage, they ought at the very least to have been taken into account at the stage of assessing attenuating circumstances applicable to the appellants. The Commission submitted that the court should withdraw the immunity granted to the appellants. It submitted that the appellants' conduct could not be said to be compatible with the grant of partial immunity, since they had made assertions that the cartel had remained dormant and had contended that that fact should be taken into account when determining the findings against them.

Both applications would be dismissed.

(1) The case law suggested that, on applying the Guidelines, a distinction had to be drawn between the assessment of the gravity of the infringement, and the assessment of the relative gravity of the participation of each of the undertakings concerned, which had to be examined in the context of mitigating or aggravating circumstances.

It was settled case-law that the effects to be taken into consideration in determining the level of fines were not those resulting from the actual conduct which an undertaking claimed to have adopted but those resulting from the whole of the infringement in which it participated. With regard to the alleged infringement of the principle of equal treatment, the principle of equal treatment or non-discrimination required that comparable situations ought not to be treated differently unless objectively justified (see [46], [47], [59] of the judgment).

On the facts of the instant case, the Commission had not disregarded its guidelines. The manner in which the appellants had been treated was comparable with the methodology in the Guidelines. On the facts, the factor relied upon by the appellants had not been relevant for the determination of the starting amount of the fine. Consequently, the fact that the Commission had not analysed them in that part of the contested decision in no way constituted an infringement of the obligation to state reasons.

The contested decision set out all the factors relevant under the guidelines for assessing the gravity of the infringement and explained, in particular, how the relative roles and importance of the participants in the infringement was taken into account in the calculation of the respective fines. Further, the complaint relating to infringement was, on the facts, based on the assumption that in determining the starting amount of the fine to be imposed on the applicants, the Commission had not complied with the guidelines and the working of the statement of objections, which was clearly not the case (see [62]-[63] of the judgment).

The circumstances had been properly taken into account in the Commission's determining of the level of the fine (see [65] of the judgment). European Commission v Anic Partecipazioni SpA: C-49/92 P [1999] ECR I-4125 applied; Cheil Jedang Corp v European Commission: T-220/00 [2003] All ER (D) 162 (Jul) applied; Le Carbone-Lorraine v EC Commission: T-73/04 [2008] ECR II-2661 applied; CD-Contact Data Gmbh v European Commission: T-18/03 [2009] 5 CMLR 1469 applied; Lindorfer v EU Council: C-227/04 P [2009] All ER (EC) 569 applied.

(2) On the facts, the appellants' arguments concerned solely the part of the infringement concerning the implementation of the pricing agreements. They did not allege that they did not implement the part of the infringement relating to the exchange of commercially important confidential market information and/or company relevant information. It was apparent that the appellants had not entirely refrained from price-fixing. The evidence adduced by the applicants did not establish that the alleged commercial policy had been applied to all of the products concerned.

On the evidence, the appellants had not established that, despite their participation in the cartel in the relevant period, their conduct had been competitive and entitled them to a reduction in the basic amount of the fine (see [134], [138], [141], [142], [166], [170] of the judgment).

The plea for reduction in the fine would be dismissed (see [175] of the judgment). Le Carbone-Lorraine v EC Commission: T-73/04 [2008] ECR II-2661 considered.

(3) Regarding the Commission's request for withdrawal of the immunity granted to the appellants, the appellants had not cast any doubt on the evidence which had been the basis for the grant of partial immunity.

In particular, they had not contested the duration or continuous nature of the infringement, or their own responsibility for the period concerned. The appellants had merely drawn the court's attention to the fact that the contested decision had not referred to any anti-competitive meeting taking place during a certain period. The reliance of the applicants would not be a ground for withdrawing the immunity granted to them (see [180]-[184] of the judgment).

The Commission's request would be dismissed (see [184] of the judgment).