Articles

Court of Justice dismissed Toshiba's appeal in the power transformers cartel case

Court of Justice dismissed Toshiba's appeal in the power transformers cartel case

02.02.2016 EU law

On 20 January 2016, the Court of Justice dismissed all appeal grounds brought by Toshiba and upheld the fine for its participation in the power transformers cartel. In 2009, the Commission imposed a fine of EUR 13.2 million on Toshiba for breaching Article 101 TFEU by participating in a market-sharing agreement with six other Japanese and European power transformer producers. 

During several meetings between 1999 and 2003, the parties orally agreed that the Japanese producers would not sell power transformers in Europe, and that the European producers would refrain from selling these products in Japan. Both the Commission and the GC considered that this "gentlemen's agreement" was a restriction of competition by object.

Toshiba argued on appeal that the GC could not have established the existence of a restriction of competition by object, since the parties to the cartel were not potential competitors. The Court of Justice found that the GC had properly assessed whether there was potential competition between the Japanese and European producers, in particular by showing that the barriers to enter the European market were not insurmountable. Moreover, the GC had considered that the oral agreement between the Japanese and European producers in itself was a strong indication that the parties were potential competitors.

Furthermore, the Court of Justice dismissed Toshiba's arguments in relation to the duration of the infringement. According to Toshiba, the GC had wrongly concluded that Toshiba had not distanced itself from the cartel activities at one of the meetings. The Court considered that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded - without manifestly opposing them - to prove to the requisite standard that the undertaking participated in a cartel. Interestingly, the Court noted that the concept of "public distancing" reflects a factual situation and thus a number of indicia should be taken into account on a case-by-case basis. [See also our newsletter article on Eturas above]. In the present case, the GC had found that Toshiba had not distanced itself once and for all from the cartel, in particular because the terms of the agreement were confirmed during a meeting at which Toshiba was present and there were doubts as to whether Toshiba stopped participating in the cartel after that meeting. The perception of the other parties to the cartel therefore is of critical importance when it comes to evidence of "public distancing". [See also the Total judgment].

Finally, Toshiba claimed that the Commission and the GC should not have used worldwide market shares when calculating the fine, because the infringement only concerned the EEA and Japan. The Court held that limiting the geographic area to the EEA and Japan would not have appropriately reflected the weight of the undertakings in the cartel, as the power transformer producers were active worldwide.

This article was published in the Competition Law Newsletter of February 2016. Other articles in this newsletter:

  1. Court of Justice confirmed independence of EU and national leniency programmes
  2. Court of Justice reduced fine imposed on Galp Energía España and acknowledged excessive duration of General Court proceedings
  3. Court of Justice clarified the concept of a concerted practice for unilateral announcements
  4. Belgium's "excess profit" tax scheme qualified as illegal state aid
  5. German Competition Authority fined ASICS for restricting Internet sales of its distributors

Team

Related news

02.01.2018 EU law
Court of The Hague confirms that the ACM can copy mobile phones during an inspection

Short Reads - On 22 November 2017, the District Court of The Hague dismissed a legal challenge that was brought against the Authority for Consumers and Markets (ACM) in preliminary relief proceedings. In the course of an inspection, the ACM had made a copy of (virtually) all data on the business mobile phones of six employees who worked for the company subject to the inspection. The Court ruled that the ACM was permitted to do so.

Read more

02.01.2018 EU law
Court of Justice: Suppliers of luxury goods may prohibit their authorised distributors from selling on third party internet platforms

Short Reads - On 6 December 2017, the Court of Justice rendered its much anticipated judgment in a dispute between a supplier of luxury cosmetics (Coty) and one of its authorised resellers. The central question was whether Coty is allowed under the competition rules to forbid its resellers to sell Coty products over third party internet platforms with visible logos (like eBay or Amazon).

Read more

02.01.2018 EU law
Court of Justice dismisses appeal by Telefónica on non-compete clause in telecoms transaction

Short Reads - On 13 December 2017, the Court of Justice dismissed the appeal brought by Telefónica against a judgment of the General Court (GC) regarding a non-compete agreement [see our July 2016 Newsletter]. The judgment confirms the finding of the GC that the non-compete clause agreed upon between Telefónica and Portugal Telecom (PT) amounted to a market sharing agreement with the object of restricting competition.

Read more

06.12.2017 EU law
EU Court of Justice: Suppliers of luxury goods may prohibit their authorised distributors from selling on third party internet platforms

Short Reads - Today the ECJ rendered its much anticipated judgment in a dispute between a supplier of luxury cosmetics (Coty) and one of its authorised resellers. The central question was whether Coty is allowed under the competition rules to forbid its resellers to sell Coty products over third party internet platforms with visible logos (like eBay or Amazon).

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy and Cookie Policy