Category Archives: Agreements, decisions and concerted practices

Public procurement & competition law : to what extent related undertakings may submit separate bids in the same tendering procedure?

Judgment
C‑144/17
08.02.2018
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Preliminary rulingLloyd’s of London
v
Agenzia Regionale per la Protezione dell’Ambiente della Calabria (Aparcal)
Court of Justice Sixth ChamberE. ReganE. TanchevPublic procurement - Competition law
KeywordsReference for a preliminary ruling — Public procurement — Articles 49 and 56 TFEU — Directive 2004/18/EC — Reasons for exclusion from a tendering procedure — Insurance services — Participation of several Lloyd’s of London syndicates in the same tendering procedure — Signature of tenders by the Lloyd’s of London General Representative for the country concerned — Principles of transparency, equal treatment and non-discrimination — Proportionality
Significant pointsThe General Court has annulled a decision of This preliminary ruling relates to a tendering procedure launched by an Italian public authority, Arpacal, for the award for a public service contract for insurance. Two Lloyd’s ‘syndicates’ participated in the call for tenders. Their tenders were both signed by an agent of Lloyd’s General Representative for Italy. However, Arpacal excluded those syndicates from the tender due to the fact that the submissions were signed by the same person. It considered that a single decision-making centre would infringe the principles of confidentiality of tenders, equal treatment, fair and free competition, protected under EU law by Articles 49 and 56 TFEU and Directive 2004/18 on public procurement procedures (“Public Procurement Directive”). Lloyd’s argued, however, that those principles were respected because the members, whilst acting through syndicates, did operate independently and in competition with one another despite coming under the same legal entity. Moreover, the syndicates may only act through their sole representative for each Member State. The referring court observed that the Italian legislation did not forbid submissions to public tenders being signed by the same person and asked the Court clarification in this regard.
In its judgment, the Court recalled, first, that the legal grounds for exclusion from public procurement procedures set out in Article 45 of the Public Procurement Directive relate to the professional qualities of the persons concerned only. Nonetheless, the case-law of the Court has interpreted that this does not preclude the option for Member States to maintain or establish, in addition to those grounds for exclusion, substantive rules intended, in particular, to ensure, with regard to public procurement, observance of the principles of equal treatment of all tenderers and of transparency, which constitute the basis of the EU directives on public procurement procedures, provided that the principle of proportionality is observed.
In that regard, the Court firstly observed that the national legislation at issue, which is intended to prevent any potential collusion between participants in the same procedure for the award of a public contract, seeks to safeguard the equal treatment of candidates and the transparency of the procedure. Consequently, the principle of proportionality requires that such legislation must not go beyond what is necessary to achieve the intended objective.
The Court judged that the automatic exclusion of tenderers that are in a relationship of association with other competitors would go beyond what is necessary to prevent collusive behavior and to ensure equal treatment and transparency. An automatic exclusion would constitute an irrebuttable presumption of mutual interference and would not grant the possibility for the candidates of demonstrating that their tenders are in fact independent. Yet previous case law provides that it is of EU interest to ensure the widest possible participation by tenderers in a call for tenders.
The Court concluded, therefore, that the principle of proportionality requires that the contracting authority be required to examine and assess the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure, a finding of such influence, in any form, being sufficient for those undertakings to be excluded from the procedure.
The Court also stated that the mere fact that tenders have been signed by the same person cannot justify their automatic exclusion from the tendering procedure. It noted in this regard that EU law applicable to insurance activities expressly allows Lloyd’s to be represented vis-à-vis third parties by a single representative for each Member State. Even though Lloyd’s may exercise its insurance activities in Member States only through the competent General Representative, the referring court must still verify that the tenders were determined and submitted independently by each syndicate.
Therefore, the Court considered that the national legislation at issue was compatible with EU law, given that it does not allow an automatic exclusion, but nonetheless allows the contracting authority to exclude tenderers where it finds, on the basis of unambiguous evidence, that their tenders were not drawn up independently.
NoteworthyIn this judgment completely in line with the Assitur case-law (C-538/07), the Court of Justice has again emphasized the importance of the principles of transparency, equal treatment and free competition in public procurement. Any exclusions from the right to tender are to be interpreted strictly and based on a factual analysis, this respecting the principle of proportionality.
The Court explained in length that the bids of undertakings linked by a relationship of control or of association should not be presumed collusive for the purpose of the EU public procurement rules and that a contracting authority had to look at the facts before any exclusion of linked undertakings. It is up to the contracting authority to establish whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure.
It can be interesting to compare this judgement with competition law, where it is possible for undertakings which share legal or financial links but enjoy commercial autonomy to submit separate and competing tenders, provided that they do not consult each other prior to the submission of their bids, such exchanges having an anti-competitive object (see for example, in French competition law, Paris Court of Appeal, 28 October 2010, n° 2010/03405). Accordingly, it seems that a violation of competition law would be more easily retained, given that the mere false autonomy of the bids allows the existence of a cartel to be presumed, whereas an actual influence on the content of the bids seems to be required to find a violation of EU public procurement law. Further explanations regarding this apparently partial convergence might be provided by the Specializuotas transportas upcoming judgment (C‑531/16).
Of particular importance to the insurance sector is the fact that Lloyd’s syndicates have the right to participate in the same tendering procedure and be represented by the same representative. This does not constitute a ground for exclusion from the procedure so long as the syndicates act independently in the formulation of their submissions.

After ICAP, new developments from the Court of Justice to the notion of a ‘by object’ restriction

Judgment
C-179/16
23.01.2018
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Non-contractual liabilityHoffmann-La Roche e.a. v Autorità Garante della Concorrenza e del MercatoCourt of JusticeGrand ChamberC.G. FernlundH. Saugmandsgaard ØeAntitrust – Concerted practice
KeywordsReference for a preliminary ruling — Competition — Article 101 TFEU — Agreements, decisions and concerted practices — Medicinal products — Directive 2001/83/EC — Regulation (EC) No 726/2004 — Allegations of risks associated with the use of a medicinal product for a treatment not covered by its marketing authorisation (off-label) — Definition of relevant market — Ancillary restriction — Restriction of competition by object — Exemption
Significant pointsThis case concerned the marketing of two medicinal products developed by Genetech, a Roche subsidiary, one for the treatment of cancer (Avastin) and the other for the treatment of ophthalmological conditions (Lucentis). Avastin was marketed by Roche itself through a licensing agreement with its subsidiary, while Novartis commercialised Lucentis through another licensing agreement with Genentech.

Following an investigation into these arrangements, the Italian Competition Authority imposed a fine on both pharmaceutical companies on the grounds of anticompetitive behavior pursuant to Article 101 TFEU. The authority found that they had concluded an agreement which was designed to disseminate misleading information relating to the adverse reactions resulting from the off-label use of Avastin in the field of ophthalmology.

The Italian Supreme Court, before which the case was brought on appeal, referred five questions to the Court of Justice for a preliminary ruling.

Firstly, the Court addressed a question related to the definition of the relevant market when a medicine is used outside of its marketing authorisation (MA). The Court considered that the fact that pharmaceutical products are manufactured or sold illegally prevents them, in principle, from being regarded as substitutable or interchangeable products. However, the Court noted that the EU rules on pharmaceutical products do not prohibit as such the off-label prescription of a medicine, provided that it complies with the conditions laid down in those rules. Given that compliance verification is not the responsibility of competition authorities but of pharmaceutical regulatory authorities (or national courts), the Court judged that, in order to assess whether a medicine whose MA does not cover the treatment of certain diseases falls within the same relevant market as a medicine with a MA, a competition authority must take into account the outcome of the compliance examination that may be carried out by the competent authorities (paras 48 to 61).

Secondly, the Court discussed whether the restriction described above may fall outside the scope of Article 101 TFEU as an ancillary restraint to a licensing agreement. This argument was promptly dismissed by the Court on two grounds: first, the disputed conduct was not designed to restrict the commercial autonomy of the parties to the licensing agreement but rather the conduct of third parties (in particular healthcare professionals); second, the restraint was agreed upon several years after the licensing agreement was concluded and so was not necessary for the latter (paras 68 to 75).

Finally, the Court addressed the main issue at stake, namely whether such an arrangement constituted a restriction of competition ‘by object’. The arrangement between the two undertakings marketing the two competing products concerned the dissemination of information, in a context of scientific uncertainty on the matter, relating to adverse reactions resulting from the use of one of those medicinal products for illnesses not covered by its MA, with a view to reducing the competitive pressure resulting from that use on another medicinal product covered by an MA covering those illnesses. On this point, the Court first noted that the fact that two undertakings colluded with each other with a view to disseminating information specifically relating to the product marketed by only one of them might constitute evidence that the dissemination of information pursues objectives unrelated to pharmacovigilance, given that pharmacovigilance obligations apply only to the company which markets the product. Then the Court observed that the dissemination of misleading information (i) encouraged doctors to refrain from prescribing the product, thus resulting in a reduction in demand, and (ii) constituted an infringement of the EU pharmaceutical regulations. Given these circumstances, the Court stated that the restriction at issue constitutes a restriction of competition ‘by object’ to the extent that the referring court confirms the misleading nature of the information communicated to the pharmaceutical regulatory authorities and the general public (paras 91 to 95).
NoteworthyA couple of weeks after the Icap judgment of the General Court (T-180/15), the Court of Justice brings further developments to the notion of a ‘by object’ restriction of competition. The Court confirms its use of this notion, which exempts competition authorities from the burden of proving the anticompetitive effect of a particular practice. The notion proves to be quite open and not limited to an exhaustive list. The Court indeed recalls that the ‘by object’ category is not limited solely to prima facie restrictions of competition. In this case, the infringement is an atypical consisting in the artificial creation of two different markets (even though it that has some analogies with a market-sharing cartel). The notion of ‘by object restriction’ also allows for consideration of the economic and legal context of the practice. In addition, in the case at hand, the Court relies on an in-depth analysis of the regulatory context of the agreement. On this basis, the Court uses the body of evidence method. On the one hand, it takes into account the incongruous nature of the agreement. On the other hand, the Court takes into consideration the "expected" result of the collusion. While it is well established case-law that anti-competitive intent is not a necessary element in determining whether an agreement has the object of restricting competition, the Court seems to recall here that this intention can nevertheless be taken into account.

Banking and financial operators must be careful as regards the exchange of information and competition law compliance

Judgment
T-180/15
10.11.2017
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Non-contractual liabilityIcap plc,
Icap Management Services Ltd,
Icap New Zealand Ltd
v.
European Commission
The General CourtSecond Chamber, Extended CompositionM. PrekCompetition Law - Article 101 TFEU - Anticompetitive agreements and concerted practices - Restriction of competition by object - Fine
KeywordsCompetition - Agreements, decisions and concerted practices - Yen interest rate derivatives sector - Decision finding six infringements of Article 101 TFEU and Article 53 of the EEA Agreement - Manipulation of the JPY LIBOR and Euroyen TIBOR interbank reference rates – Exchange of information - Restriction of competition by object - Participation of a broker in the infringements - ‘Hybrid’ settlement procedure - Principle of the presumption of innocence - Principle of sound administration - Fines - Basic amount - Exceptional adjustment - Obligation to state reasons
Significant pointsIn 2013, the Commission imposed fines of EUR 669.7 million in total, on the banks UBS, RBS, Deutsche Bank, Citigroup, JP Morgan and on the broker RP Martin for participating in cartels . The undertakings manipulated the London Interbank Offered Rate (LIBOR) and the Tokyo Interbank Offered Rate (TIBOR) interbank reference rates on the Japanese Yen interest rate derivatives market. The Commission revealed seven bilateral infringements from 2007 to 2010. The cartels consisted in discussions between traders on certain JPY submissions. Occasionally, the traders also exchanged commercially sensitive information relating to their trading positions or future JPY LIBOR submissions. Those submissions reflect the ‘average‘ rate from which panel bank could borrow funds. The companies admitted their involvement in the cartels, which allowed the Commission to settle the case.
In a later decision (in 2015), the broker Icap was found by the Commission to have facilitated the same conduct by serving as a conduit for collusive communications (in one of the instances) and by contacting other JPY LIBOR panel banks or disseminating information via manipulated daily ‘Run Thrus’ (in the remaining five instances). A spreadsheet circulated each business day by Icap to a number of financial institutions contained information on the prevailing borrowing rates for Japanese and offshore banks for all the JPY LIBOR tenors as well as a table entitled ‘suggested libors’, which consisted of suggested JPY LIBORs submissions for all tenors on the relevant business day.
In this case, the applicants sought the annulment of Commission’s decision and, alternatively, the reduction in the amount of the fines imposed upon them.

First, the applicant alleged errors in the interpretation by the Commission in its decision of the concept of restriction or distortion of competition ‘by object’ within the meaning of Article 101(1) TFEU.
In that regard, the General Court firstly recalled the judgment in Dole Fresh Fruit v Commission which affirmed that an exchange of information which removes uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings in their conduct on the market must be regarded as pursuing an anticompetitive object. There is no need for there to be a direct link between the conduct and consumer prices in order to find that a concerted practice has an anticompetitive object.
Secondly, the General Court took the view that, in the light of the significance of the impact of the level of the JPY LIBOR rates on the amount of the payments effected in respect of derivatives, the mere communication of information regarding the future submissions of a bank which is a member of the JPY LIBOR panel was capable of giving an advantage to the banks concerned. It indeed removed them from the application of normal competition on the Japanese Yen interest rate derivatives market.
Consequently, the General Court decided that the Commission did not commit any error of law or assessment in finding that the infringements alleged against Icap were restrictive of competition by their object.

Second, Icap challenged the Commission’s decision to impose a fine of EUR 14.96 million on it for its role as a facilitator of the cartels. It claimed that it was not aware of the collusion involving, amongst others, UBS/RBS 2008. The General Court recalled the judgement in Treuhand that obliged the Commission to demonstrate that an undertaking was aware of the actual conduct planned or put into effect by each of the banks concerned or could have reasonably foreseen it. The Court then concluded that there did not exist firm, precise and consistent evidence that Icap was aware of the bilateral cartel between UBS and RBS in 2008 and thus annulled the part of the Commission’s decision finding that Icap had participated in this bilateral cartel. However, the General Court agreed that the evidence underlying the Commission’s conclusions as regards the other cartels was sufficient to prove that Icap was aware or should have been aware of the unlawful collusion.

Third, Icap also disputed its role in the cartels. The General Court agreed with the Commission, however, that Icap had contributed to the common objectives of those cartels. Its awareness of the anticompetitive conduct – apart from as regards UBS – and its assistance in putting this into effect sufficed in order to find that Icap had infringed competition law. Notably, the General Court considered that the Commission had not infringed the principle of legal certainty in its application of the ‘facilitation’ test (above). Firstly, Icap, which as a professional operator is used to having to proceed with a high degree of caution when pursuing its occupation, should have expected, if necessary after taking appropriate legal advice, its conduct to be declared incompatible with the EU competition rules. Secondly, its participation for some of the infringements concerned was significant. In so far as JPY LIBOR rates are calculated on the basis of the submissions of the panel members, the influence exerted by Icap over its customers which were members of that panel via the daily spreadsheet referred to above made it possible to amplify the manipulations of those rates to a much greater extent than if those manipulations had remained confined only to the submissions of the two banks concerned by each of those infringements.

Fourth, Icap argued that the Commission had not proven the continuous nature of the infringement periods that it claimed. In this regard, the General Court found that the Commission had indeed failed to justify the duration of three of the cartels in which Icap was deemed to have participated: namely the UBS/RBS 2007 cartel after 22 August 2007, the Citi/RBS cartel between 5 March and 27 April 2010 and the Citi/UBS cartel between April and 18 May 2010. In its assessment, the General Court took into account the fact that JPY LIBOR rates are set on a daily basis and, therefore, that the effects of manipulating those rates are limited in time and that the manipulation needs to be repeated in order for those effects to continue.

Fifth, Icap claimed that its right to an impartial procedure under the Charter of Fundamental Rights was violated. The General Court underlined that where there are ‘hybrid’ settlement procedures (i.e. some undertakings agree to settle whilst others don’t) the Commission must find a way to respect the presumption of innocence of the undertakings which have decided not to enter into a settlement. This is a fundamental right enshrined in the Charter of Fundamental Rights. The Commission infringed the presumption of Icap’s innocence in its 2013 settlement decision by already considering in that decision that Icap was liable in respect of the ‘facilitation’ of the infringement concerned. Nevertheless, this breach by the Commission did not have an impact on the content and therefore the legality of the challenged decision in 2015.

Finally, the General Court underlined that the Commission did not sufficiently explain in its decision the methodology applied in order to determine the amount of the fines. This involves indicating the factors which enabled to determine the gravity of the infringement and its duration and weighting and assessing those factors. The General Court annulled the part of the decision setting the fines because the Commission did not explain why it chose to apply a certain method and only gave a general statement as regards the gravity, duration and nature of Icap’s infringement. Such limited reasoning did not permit an undertaking to understand the fine calculation nor a Court to legally review the decision and thus infringed the principle of due reasoning of decisions taken by EU institutions.
Noteworthy1) This judgment is extremely interesting as regards the question of the anticompetitive exchange of information between operators in the banking and financial sector. It provides a useful reminder that certain information exchanged between undertakings may be so sensitive from a competitive standpoint that its transmission constitutes an infringement of competition law by object (meaning there is no need to prove the anticompetitive effect; it is presumed). Banks, financial operators and insurance companies must be careful, therefore, that any information they exchange between themselves is lawful, notably in the context of forms of horizontal cooperations.

2) The General Court also applied the principles laid down in the Treuhand judgment as regards undertakings which act as intermediaries between cartelists and facilitate the cartel. Such undertakings violate competition law only where they are aware or should reasonably be aware that the information that they transfer is used to put a cartel into effect. In this case, Icap’s role had actually enabled the cartel to be much more effective by making information available to more undertakings involved in the cartel than would otherwise have been the case.

3) In addition, the General Court has continued to review Commission Article 101 TFEU decisions in an extremely strict way. For instance, the Court highlighted that the Commission must respect the presumption of innocence of undertakings which have decided not to enter into a settlement procedure during the entire procedure leading to the final decision. A settlement decision cannot indicate that an undertaking not party to that decision and which has not had the chance to defend itself has infringed competition law. Likewise, the Commission must explain in its decision the methodology applied for calculating fines and how it assesses different factors in that calculation.

The EU General Court awards damages to a company for the excessive length of time taken to deal with its appeal

Judgment
T-673/15
07.06.2017
PartiesJurisdictionFormationJudge RapporteurAdvocate GeneralSubject-matter
Non-contractual liabilityGuardian Europe S.à r.l.General CourtThird Chamber, Extended CompositionE. Bieliūnas/Non-contractual liability
KeywordsNon-contractual liability — Representation of the European Union — Barring of actions — Nullification of the legal effects of a decision which has become final — Precision of the application — Admissibility — Article 47 of the Charter of Fundamental Rights — Obligation to adjudicate within a reasonable time — Equal treatment — Material damage — Losses sustained — Loss of profit — Non-material damage — Causal link
Significant pointsIn its judgement, the GC ordered the EU, represented by the institution of the Court of Justice, to pay compensation to Guardian Europe Sàrl for the material damage sustained by that company because of the infringement by the EU General Court of its obligation to adjudicate within a reasonable time.

In the case at issue, Guardian Europe Sàrl, a Luxemburgish company, was fined € 148 million by the EC for its participation in a cartel in 2007. The company brought an action for annulment before the GC against the Commission’s decision. However, the ruling was only rendered in 2012 (Case T-82/08), more than four years after Guardian Europe Sàrl introduced its appeal. The company decided to bring an action before the CJ for liability under Article 340 TFEU on the part of the EU in order to seek compensation for the damages which it allegedly sustained. It pleaded, first, a sufficiently serious infringement of the principle of equal treatment in the Commission’s decision and in the 2012 GC’s judgment and secondly that there was an infringement of the obligation to adjudicate within a reasonable time as regards the 2012 judgement. The CJ rendered its judgment in 2014 finding the table and sent EU the case back to the GC/

The GC recalled that, according to settled case law, Article 340(2), TFEU required the satisfaction of three cumulative conditions in order to create a right of compensation. These conditions are the unlawfulness of the conduct of which the institutions are accused, the fact of damages incurred and the existence of a causal link between that conduct and the damages complained of.

As regards the GC’s judgment, the applicant alleged that the length of the proceedings at first instance infringed the obligation to adjudicate within a reasonable time and thus that the infringement caused Guardian Europe damage, which had to be compensated.

The GC found that the procedure Case T-82/08 infringed Article 47(2) of the Charter of Fundamental Rights of the European Union by holding that the length of the proceedings, which took four years and seven months, could not be justified. Notably, the judges pointed out that three years and five months (forty-one months) elapsed between the end of the written part and the opening of the oral part of the procedure (the hearing). According to case law, the GC recalled that a period of 15 months between the end of the written part of the procedure and the opening of the oral part of the procedure is, in principle, an appropriate length of time for cases dealing with the application of competition law. In the present case, the GC found that, during the period of forty-one months, a period of 26 months of inactivity was thereby unjustified. Consequently, the GC judged that Case T-82/08 infringed Article 47(2) of the Charter by exceeding the reasonable time for adjudicating in that case and that constituted a sufficiently serious breach of a rule of EU law intended to confer rights on individuals.

On the alleged damages and the alleged causal link, the GC only accepted to acknowledge the existing link between the infringement of the obligation to adjudicate within a reasonable time in Case T 82/08 and the occurrence of the damages sustained by the applicant as a result of its having paid bank guarantee costs during the period in which the reasonable time for adjudication was exceeded. The damages were estimated at EUR 654 523.43, which was adjusted for compensatory interest. However, the GC did not accept the non-material damages invoked by the applicant since the latter did not prove that the infringement of the obligation to adjudicate within a reasonable time in Case T 82/08 was such as to damage its reputation.
NoteworthyThe present case follows the ruling in Gascogne (T-577/14) and Kendrion (T-479/14) where the GC also ordered the EU to pay compensation because of the excessive length of the proceedings before the ECJ. Although the sum of damages accorded is significant and shows the material impact that long judicial proceedings can have on undertakings, the amount obviously pales in comparison to the fine of € 148 million imposed by the European Commission (0.4%). The comparison offers a reminder of how high fines for competition law infringements can be, their calculation being based on the companies’ turnover on the market concerned. Nonetheless, the award of damages demonstrates that the General Court must process cases within a reasonable time.

Competition — European market for hydrogen peroxide and perborate

Judgment

T-345/12

28.01.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Akzo Nobel NV e.a. v.

European Commission

General Court

3rd Ch.

N. Forwood

/

Cartels  Confidentiality

Keywords

Competition — Administrative proceedings — European market for hydrogen peroxide and perborate — Publication of a decision finding an infringement of Article 101 TFEU — Rejection of a request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Obligation to state reasons — Confidentiality — Professional secrecy — Legitimate expectations

Significant points

  1. Disclosing information concerning an infringement of EU competition law through the publication of a decision penalising that infringement, on the basis of Article 30 of Regulation No 1/2003, cannot, in principle, be conflated with allowing third parties access to documents contained in the Commission’s investigation file relating to such an infringement. Thus, in the present case, the publication of information relating to the circumstances constituting the infringement that was not contained in the non-confidential version of the HPP decision published in 2007 — were it to take place — would not result in the communication to third parties of the leniency applications submitted to the Commission by the applicants, of the minutes of the oral statements made by the applicants in the context of the leniency programme, or of the documents that the applicants voluntarily submitted to the Commission during the investigation.
  2. There is no rule of law that the Commission would infringe simply because the proposed publication of information provided in the context of the leniency programme could have an impact on the implementation of that programme in future investigations. Furthermore, that particular argument involves the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised, and the interest of the Commission in safeguarding the effectiveness of its leniency programme. Those specific interests are not peculiar to the applicants, with the result that it is for the Commission alone to balance, in the circumstances of the case at hand, the effectiveness of the leniency programme, on the one hand, and the interest of the public and of economic operators in knowing the content of its decision and taking action in order to protect their rights, on the other.
  3. It is necessary to reject the applicants’ argument that the Commission is prohibited from making public, in any circumstances, information contained in leniency applications or statements made in the context of the leniency programme as a result of the 2002 or 2006 Leniency Notices.

Noteworthy

In this judgment, the General Court confirmed that the Commission could in principle publish a non-confidential version of a cartel decision containing information submitted voluntarily by a cartel participant in an immunity application. No rules prevent the Commission from publishing such a version so long as it refrains from disclosing any business secrets of the cartel participant involved and the actual documents submitted in the immunity or leniency application. In those circumstances, the applicants’ legitimate expectations and right to good administration would not be infringed.

Non contractual liability – Competition – International removal services market in Belgium

Judgment

T-539/12 and

T-150/13

15.01.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Claim for compensation

Ziegler SA,

Ziegler Relocation SA

V

European Commission

General Court

 5th Ch.

A. Dittrich

/

Competition law

Keywords

 Non-contractual liability – Competition – International removal services market in Belgium – Removals of officials and other servants of the Union – Decision finding an infringement of article 101 TFEU – Cover quotes – Scope of an institution`s responsibility – Force of res judicata – Duty of care – Causal link

Significant points

  1. According to the decision C(2008) 926 final of 11 March 2008, the Commission found that Ziegler participated in a cartel on the international removal services in Belgium, relating to the direct or indirect fixing of prices, market sharing and the manipulation of the procedure for the submission of tenders by means of over quotes.
  2. Arguing that the practice of over quotes sollicitated by EU civil servants was still existing at the EU Commission and that the latter refrained from taking any steps to stop it, Ziegler brought an action for compensation
  3. The latter has been dismissed to the extent that under article 340 (2) TFEU the EU is responsible for non-contractual cases, if its institutions or its servants caused damage in the performance of their duty and that the doings at issue  of the civil servants of the EU Commission did not occur within this framework.
  4. The Commission has not infringed an obligation to act against the other competitors and has fulfilled its duty of care. There is no obligation for the Commission to change the administrative removal rules for the EU officials. The Commission has a wide discretion regarding reimbursement removal for the EU officials, the choice to protect its financial interests, the application of the Regulations of Officials of the European Union and the initiation of disciplinary investigations.

Noteworthy

Cartels – French market for analysis of clinical biology

Judgment

T-90/11

10.12.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Action for annulment

Ordre national des pharmaciens and Others

v

Commission

General Court

9th Chamber

O. Czùcz

/

Cartels – Agreements between undertakings

Keywords

Competition – Cartels – French market for analysis of clinical biology – Decision finding infringement of Article 101 TFEU – Association of undertakings – Industry body – Object of inspection and investigation – Conditions of application of Article 101 TFEU – Infringement by object – Minimal price and damage to the development of laboratory groups – Single and continuous infringement – Evidence – Errors of factual and legal assessment – Amount of fine – Paragraph 37 of 2006 Fining Guidelines – Full jurisdiction

Significant points

The General Court confirmed the Commission’s decision to find that a French professional association representing pharmacists (ONP) had infringed Article 101 TFEU.The General Court agreed with the Commission that the ONP had to comply with competition law. Competition rules applied to it as an association bringing together pharmacists, who are undertakings for the purposes of EU competition law. In this regard, the ONP was not a public authority exercising regulatory powers and its conduct went beyond what it was entitled or requested to do under French law.The ONP’s conduct violated Article 101 TFEU because it conspired to impede the actions of groups of laboratories on the market, which may have increased competition, and it imposed a minimum price policy stopping laboratories from granting discounts of more than 10%. The General Court rejected ONP’s argument that it was merely implementing French law.

Noteworthy

Agreements, decisions and concerted practices — Market for flat glass in the European Economic Area (EEA)

Judgment

C-580/12 P

12.11.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Guardian Industries Corporation and Guardian Europe Sarl

v

Commission

CJEU

3rd Chamber

C.G. Fernlund

M. Wathelet

Appeal  Agreements, decisions and concerted practices

Key-words

Appeal — Agreements, decisions and concerted practices — Market for flat glass in the European Economic Area (EEA) — Price-fixing — Calculation of the amount of the fine — Inclusion of an undertaking’s internal sales

Summary

In order to determine the amount of the fine to be imposed on an undertaking, the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is the best means to reflect the economic importance of that infringement and the relative weight of that undertaking in it. As regards such sales, a distinction therefore need not be drawn between external and internal sales. Excluding a company’s internal sales would effectively favour vertically integrated companies by reducing their relative weight in the infringement to the detriment of other companies, on the basis of a criterion which has no connection with the objective pursued (namely that of reflecting the economic importance of the infringement and the relative weight of each of the undertakings which took part in it).The Court has therefore decided to reduce the amount of the fine imposed on Guardian by 30% and to set that fine at €103.6 million.

Noteworthy

A judgment which has as the effect of improving the internal coherence of the EU Commission 2006 Guidelines on the calculation of the amount of fines for the infringement of EU antritrust provisions and therefore to limit the (rather considerable) room for assessment of the EU Commission in this respect. It also contributes to more equality between vertically integrated and non-integrated firms and as a result is in line with the principle of neutrality of European law with respect to the manner in which companies structure and design their business.