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Competition Law Newsletter

Competition Law Newsletter

Competition Law Newsletter

02.10.2015

1. Court of Justice reduced fine on Total SA in candle wax cartel judgment
2. General Court partially annulled cartel decisions in cathode ray tubes appeals
3. Commission provided further guidance on the conduct of inspections
4. First settlement decision in an abuse of dominance case in Belgium

1. Court of Justice reduced fine on Total SA in candle wax cartel judgment

On 17 September 2015, the Court of Justice rendered two judgments in appeals brought by Total SA and its subsidiary Total Marketing Services SA ("Total Marketing") against fines imposed in the candle wax cartel.

In the judgment concerning Total SA, the Court of Justice confirmed and further clarified the principles laid down in Tomkins and ruled that the fine imposed on a parent company had to be brought in line with the fine imposed on its subsidiary. The appeal by Total Marketing was dismissed in its entirety. However, in this judgment, the Court of Justice corrected the General Court ("GC") and ruled that publicly distancing itself from a cartel is an important, but not the only factor in assessing whether an undertaking has ceased participating in a cartel.

In its decision of 1 October 2008, the European Commission jointly and severally fined Total SA and its subsidiary Total Marketing for EUR 128 million. Total SA was held liable purely as (indirect) 100% parent company of Total Marketing. Both companies brought parallel appeals before the GC, resulting in a reduction of the fine on the subsidiary to EUR 125 million on account of a misapplication of the fining guidelines. However, the GC did not reduce the fine imposed on Total SA to the same extent.

As regards Total SA, the Court of Justice found that the GC erred in law in not having regard to the outcome of the judgment relating to the subsidiary. The judgment confirms that the liability of a parent company cannot exceed that of its subsidiary when its "liability is purely derivative of that of its subsidiary" and "no other factor individually reflects the conduct for which the parent company is held liable". The application of these principles by the European Courts requires that certain procedural requirements are satisfied, inter alia the bringing of parallel appeals by the subsidiary and its parent company having the same object. As these requirements were met in the present case, the Court of Justice ruled that Total SA "must, in principle, benefit from any reduction in the liability of its subsidiary which had been imputed to it" and reduced the fine of Total SA accordingly.

In a parallel appeal, Total Marketing disputed its involvement in the cartel during certain periods. Although the Court of Justice dismissed this appeal in its entirety, it did find that the GC erred in law in so far as it held that an undertaking can only prove that it has ceased participating in a cartel by publicly distancing itself from the cartel. In fact, although publicly distancing itself is an important factor, there are other means of showing that an undertaking has ceased its involvement in a cartel. However, since the GC also established Total Marketing's participation on the basis of other factors, the Court of Justice upheld the fine imposed.

2. General Court partially annulled cartel decisions in cathode ray tubes appeals

On 9 September 2015, the General Court ("GC") handed down five judgments on the European Commission cathode ray tubes ("CRTs") cartel decision. In the Toshiba case, the GC partially annulled the decision because of lack of evidence of its participation before entering into a joint venture with Panasonic. In the Panasonic case, the GC reduced the fine because the Commission had failed to take into account turnover information provided by Panasonic for the calculation of the fine. The other appeals were dismissed, most notably in relation to the attribution of liability for infringements to minority shareholders.

On 5 December 2012, the Commission found that eight CRT producers had participated in two separate infringements of Article 101 TFEU. One infringement related to colour picture tubes ("CPTs"), between 3 December 1997 and 15 November 2006, and the other to colour display tubes ("CDTs"), between 24 October 1996 and 14 March 2006. The cartels consisted of price fixing, allocation of markets, customers and sales volumes and exchange of information.

Toshiba v Commission (T-104/13)

In the Toshiba case, the GC partially annulled the decision because of lack of evidence of its participation before entering into a joint venture with Panasonic.

The Commission had found that Toshiba participated in the infringement first directly, and subsequently through its joint venture with Panasonic, MT Picture Display ("MTPD"). With regard to the period before the joint venture, the Commission had based Toshiba's participation on nine bilateral anti-competitive contacts. Toshiba submitted on appeal that such incidental bilateral contacts were not sufficient to prove the single and continuous infringement.

The GC sided with Toshiba and considered that it was insufficient for the Commission to establish the anti-competitive nature of the bilateral contacts. Instead, according to standing case-law, in order to hold an undertaking liable for a whole single and continuous infringement, in this case a long-lasting cartel concerning among other things price fixing, the Commission should have proven that the undertaking was aware, or should have been aware of the overall plan of the cartel participants. An undertaking should also have intended to contribute to the common objective of the single continuous infringement. As the Commission failed to establish this, the GC annulled the fine imposed on Toshiba for the period before its joint venture with Panasonic.

In respect to Toshiba's liability for the actions of its joint venture MTPD, Toshiba contended that it could not be held liable as a mere minority shareholder with 35.5% of the shares in MTPD.

The GC rejected Toshiba's arguments and concluded that Toshiba could be held liable because it exercised decisive influence on MTPD jointly with Panasonic. The GC considered that Toshiba enjoyed rights that went beyond those typically assigned to minority shareholders as it, among others (i) enjoyed veto rights on strategic matters such as material investments; (ii) decided jointly with Panasonic on operational and financial objectives; (iii) appointed the vice-president, who was one of the two directors entitled to represent the joint venture. Furthermore, Toshiba and MTPD were each other's preferred suppliers and the Commission had provided examples of Toshiba's exertion of decisive influence in practice. Toshiba, on the other hand, had not adduced evidence showing that, in practice, the commercial decisions were taken by other means than the formal procedures. Therefore, the GC confirmed that Toshiba could be held jointly and severally liable with MTPD and Panasonic for exercising decisive influence on MTPD.

This liability of Toshiba, however, did not concern liability for direct participation, but only in its capacity as parent company, together with Panasonic, of MTPD. For that reason, any annulment or reduction of the fine of MTPD would also benefit Toshiba [see our article on Total SA above]. As the fine on MTPD was reduced by the GC [see below], the GC also reduced the fine on Toshiba.

Panasonic and MTPD v Commission (T-82/13)

In the Panasonic case, the GC reduced the fine because the Commission had failed to take into account turnover information provided by Panasonic for the calculation of the fine.

In the Panasonic appeal, the Commission had imposed a fine on Panasonic for CPTs sold to third parties in the EEA (external sales), and CPTs that were transformed by Panasonic itself into finished televisions (internal sales), which were subsequently sold in the EEA. In the calculation of the fine, the Commission assumed that the value of CPTs in the external sales equated the value of CPTs in the internal sales.

Panasonic contended, supported by expert data, that this approach ignored that the CPTs incorporated in the transformed products were generally smaller and thus the value of CPTs in the transformed products was lower than the value of the CPTs in the external sales. The Commission had ignored the data provided by Panasonic, claiming that this would lead to unequal treatment as the other cartel participants had not provided such data.

The GC recalled that in determining the value of sales by an undertaking the Commission is required to take the undertaking's "best available" figures. For this reason, the Commission should have used Panasonic's specific data. The fact that other cartel participants did not have the better information available does not lead to unequal treatment.

LG Electronics v Commission (T-91/13) and Philips v Commission (T-92/13)

On 1 July 2001, LG Electronics ("LG") and Koninklijke Philips Electronics NV ("Philips") merged their worldwide CRT activities by creating a full-function joint venture, the LPD group.

In the Commission decision LG and Philips were held jointly and severally liable for the infringement of the LPD group as the 50-50% parent companies. The Commission did not attribute liability to the LPD group itself on the ground that it was subject to bankruptcy proceedings at the time the decision was issued.

The attribution of liability to LG and Philips

The GC dismissed all arguments put forward by LG and Philips concerning the attribution of liability for the conduct of the LPD group and ruled in essence that the Commission had established to the requisite legal standard that both parent companies had exercised decisive influence over their joint venture. LG and Philips could therefore be held jointly and severally liable for the participation of the LPD group in the infringements.

In addition, the GC ruled that the Commission was entitled to impute liability solely to the parent companies and not to the LPD group as well since "as a result of the attribution of liability to a parent, the parent company is deemed to have committed the infringement itself".

That is not called into question according to the GC by the argument that the liability of a parent is purely derivative and secondary and depends on that of its subsidiary as established in Tomkins [see our February 2013 newsletter article; see also our article on Total SA above]. That line of case law is interpreted by the GC as strictly meaning that a parent company cannot be liable for a period in respect of which there is no evidence of the participation of its subsidiary in the infringement.

The GC also rejected the argument that the Commission's choice not to impute liability to the LPD group hampered the parent company's ability to bring a civil action against the LPD group. According to the GC, that cannot affect the legality of the Commission decision.

Lastly, it is noteworthy that the GC, following the principles laid down by the Court of Justice in InnoLux, ruled that the Commission was entitled to include in the calculation of the fines, the value of sales of CRTs transformed into finished televisions outside the EEA, and were subsequently sold within the EEA. [see our August 2015 newsletter article].

Samsung SDI v Commission (T-84/13)

In Samsung SDI, the GC dismissed all pleas that Samsung put forward in their entirety. Most notably, the GC found that the Commission (i) rightly established the existence of a single continuous infringement; and (ii) was entitled not to grant a larger reduction under the leniency programme.

Samsung argued that there was not one single continuous infringement, but multiple separate infringements. The cartel meetings were organised on different platforms (in Europe and in Asia) and related to different types of CPT. The GC rejected the argument, as it found links of complementarity between the different parts of the cartel. These links of complementarity consisted of a commonality in participants, objectives and methods.

Samsung also claimed that the Commission should have granted a 50% reduction of the fine under the leniency programme instead of 40%. The Commission had limited the fine reduction to 40% because Samsung had minimised the content and the meaning of the documentary evidence. The GC agreed with the approach taken by the Commission.

Conclusion

The CRT cases show that the GC will, even when certain anticompetitive contacts of an undertaking cannot be disputed, review critically whether an undertaking was part of a bigger single and continuous infringement. The GC appears less critical in the assessment of liability to minority or 50-50% shareholders: the exercise of decisive influence of the shareholders is quite easily presumed in the CRT cases.

3. Commission provided further guidance on the conduct of inspections

On 11 September 2015, the Commission published a revised version of its explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003 (the "Revised Explanatory Note"). As was the case in the previous update of the Commission's note, the most relevant additions in the Revised Explanatory note concern IT-searches and continued inspections [see our May 2013 newsletter article].

In particular, the Revised Explanatory Note clarifies that the Commission may search the entire IT-environment and all storage media including servers, external hard disks, backup tapes and cloud services. In addition, the Commission sustains that searches can be extended to private devices and media that are used for professional reasons when they are found on the undertaking's premises.

The Revised Explanatory Note also clarifies that selected evidence may be collected in its "technical entirety". In other words, if only the attachment of an email is selected, the final export can consist of the cover email and all the attachments contained within the email and/or other embedded data items.

Additionally, the Revised Explanatory Note provides further guidance on the conduct of continued inspections when the selection of documents is not completed by the end of the inspection on the undertaking's premises. The undertaking can now be requested to keep the sealed envelope with the data set still to be searched to allow the Commission to continue with the search in a subsequent announced visit at the premises of the undertaking. This provides an alternative to continuing with the inspection of the contents of the sealed envelope at the Commission's premises.

The Revised Explanatory Note also elaborates on the treatment of personal data subject to EU Data Protection Rules and confirms the Commission's practice of obtaining and copying business documents/data that may contain the personal data of individuals.

Even though the Revised Explanatory Note is not legally binding, non-compliance with the instructions thereby provided is likely to be interpreted as a violation of the undertaking's obligation to fully cooperate with the Commission's inspections. More challenges to the Commission's practices during on-site inspections are likely to follow in line with recent cases in this area [see our May 2015 and July 2015 newsletter articles.]

4. First settlement decision in an abuse of dominance case in Belgium

On 22 September 2015, the Prosecution Body of the Belgian Competition Authority rendered its first settlement decision in an abuse of dominance case. While the European Commission's settlement procedure only applies to cartel cases, the Belgian Code of Economic Law ("BCEL") also provides for the possibility of settling abuse of dominance cases, even where Article 102 TFEU is applicable as well.

In May 2013, four companies active in the sector of sports betting lodged a complaint with the Belgian Competition Authority against the National Lottery. Besides its activities linked to the organization of public lotteries, for which it benefits from a legal monopoly, the National Lottery began to offer sports betting in 2013. According to the complainants, the National Lottery abused its dominant position when launching its sports betting product Scooore!

Although the Belgian Competition Authority dismissed most of the objections raised by the complainants, it considered that the National Lottery infringed Article IV.2 BCEL and Article 102 TFEU by: (i) making a one-off use of contact details of persons registered in its database obtained in the context of its legal monopoly, in order to send a promotional email for the launch of Scooore!; and (ii) requesting and receiving from its dealers commercially sensitive information about competitors active in the sector of sports betting.

Regarding the first practice, the Belgian Competition Authority recalled that certain behavior carried out on another market than that on which an undertaking has a dominant position can be considered an abuse of a dominant position, even if such behavior actually took place and had effects on that related market and not on the market where the undertaking is dominant. In view thereof, applying for the first time its 2014 fining guidelines, the Belgian Competition Authority imposed a fine of EUR 1,190,000 on the National Lottery.

Although the Belgian Competition Authority indicated in its press release that the settlement decision cannot be appealed, provisions in the BCEL indicate that the appeal restriction is limited to the addressee of the decision. Therefore, it cannot be excluded that one of the complainants may be able to successfully launch an appeal.

Team

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