Cartel enforcement: focus on procedure

Jūlija Jerņeva

Riga, Hotel Bergs, 25 May 2012

Presentation plan

1. Object or effect? The eternal question

2. Procedural issues:• Proof of participation in a cartel

• Reduction of fines and consequences of procedural breaches

2

Rimi, Maxima, Iki cases (1)

• Case E02-7, Maxima; Case E02-18, Iki; Case E02-20, Rimi

• Rent agreements with shopping centers:• Prior consent required to allow new tenants, engaged in groceries retail

• Mostly anchor tenants

• CC: clear object case

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Object or effect?

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Timeline

Conclusion of the agreement

If object case: •Automatic breach•No need to wait for the effect

If effects case:•No need to wait for the effect, BUT requirement to prove it

Rimi, Maxima, Iki cases (2)

• The “famous” decision of the Senate

• OFT “Guideline on the application of competition law to land agreements”, OFT1280a, March 2011• Generally effects cases

• Object case: both parties are competitors and the object of the agreement is the geographic allocation of the markets or division of customers • Uniform application of Art 101 in the EU?

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Pfeiderer• Case 360/09

• Access to leniency submissions in the context of follow-up damages claims

• German decor paper cartel case (Pfeiderer – the customer of the cartel participants)

• The decision on fine: identifying information removed

• German court of first instance decides to grant the access to file, but decision objected

• Reference to ECJ: may a party, adversely affected by a cartel be given access to leniency applications for the purpose of bringing civil law claims?

• ECJ: the EU law does not preclude such an access (absence of binding rules re national procedure), but it is for national courts to assess whether such disclosure is necessary and proportionate to protect a claimant’s right to damages

• AG Mazak opinion in Switchgear case:, 16.12.2010, paras 40-47

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Gas Insulated Switchgear (1)• Case T-110/07, Siemens; Cases T-117/07 and T 121/07, Areva and others;

Joined cases T-122/07 to 124/07, Siemens AG Osterreich and others

• Reduction of fine by 35% and 20% to Areva group companies (Siemens was cartel leader for almost 11,5 years, but Areva for only about 5 years; no basis for the increase as a leader)

• EC failed to prove participation in the cartel by Siemens and VATechgroup between April and June 2002

• Liability for the subsidiary by the new owner only if:• The infringement continues and the responsibility of the new parent company

can be established

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Gas Insulated Switchgear (2)

• Case T-112/07, Hitachi and others; Case T-113/07, Toshiba; Case T-132/07, Fuji Electric; Case T-133/07, Mitsubishi

• Fuji Electric sought to rely on new evidence before the court

• ECJ: • Fuji Electric could do so, since that was a necessary right for the defence

• The defence is not required to offer during the administrative proceedings all the material on which it may wish to rely on appeal

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Fittings Cartel

• Ten judgments, see Court Press Release 24/11, 24 March 2011

• EC relied on a meeting between IBP and Simplex in March 2004, but the GC compared the statements and concluded those were conflicting, there was not enough evidence to find an infringement

• GC: not clear that Aquatis knew, or must have known when it attended some French industry association meetings and had other contacts with competitors that it was “joining the circle of participants in the pan-European cartel”. Even previous participation not sufficient to prove that Aquatis rejoined the cartel

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Dutch Beer

• Case T-240/07, Heineken; Case T-235/07, Bavaria

• The EC evidence as regards “occasional coordination of other terms”, where the Court found the evidence put forward as fragmented, imprecise and insufficient

• The investigation lasted 65 between first inspections and the SO and 20 months between the SO and the final decision: too long, fine reduction by EUR 100’000 by the EC. The Court: reduction must be 5%

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Sodium Chlorate

• Cases T-199/08, Elf Aquitane and T-343/08, Arkema France

• The evidence, relied upon by the EC was unreliable, excessively sporadic and fragmented

• The EC failed to show to the requisite standard that Aragonesasparticipated from December 1996 to February 2000

• Extensive analyses of the evidentiary rules

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Synthetic Rubber

• Cases T-38/07, 39/07, 42/07, 45/07, 53/07 and 59/07

• Unipetrol: Contradictions as to the dates of alleged meetings

• Dow: • its’ employee was seconded from a cartel member and during that time first

attended the meeting

• Court: the EC failed to prove if the employee in question was representing Dow or BSL (Dow’s supplier).

• Thus the starting date of participation in the cartel was moved from July 1996 to September 1996

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International Removals

• Five judgments, see Court Press Release 63/11, 16 June 2011

• Gosselin: the EC had not shown that it had infringed between October 1993 and November 1996.

• EC had no documents proving Gosselin’s infringement in this period

• EC: Gosselin had not definitely ended participation, had not “publicly distanced itself” from the cartel

• Court: the obligation to publicly distance does not apply, since there were no multilateral meetings (participation in which might give an impression to the others that the company is willing to agree)

• The fact that Gosselin had participated in the cartel before and after is not enough (cartel meetings were 3 times a year, but no proof of Gosselin participation for 3 years)

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Terra Serviss

• Latvian Competition Council Case E02-70, Preiss Agro and Terra Serviss

• Preiss Agro – the only official distributor of the NewHollad goods (wholesales and retail). Terra Serviss – the retail level distributor only

• Cooperation agreement:• Common trade mark

• Joint distribution of agricultural machinery spare parts

• Joint warranty repair and other services provision

• Obligation to buy the agricultural machinery from each other

• All service fees agreed in the agreement

• Full disclosure of price, assortment information

• Geographic market allocation

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Thank you!Jūlija JerņevaMob: +371 29131597https://www.linkedin.com/in/julijajerneva