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

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

02.02.2016 NL 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

07.10.2021 NL law
Commission’s record fine for gun jumping upheld

Short Reads - Pre-closing covenants protecting the target’s value or commercial integrity pending merger clearance from the European Commission must be drafted carefully. The General Court confirmed the Commission’s record-breaking fines on Altice for violating the EU Merger Regulation’s notification and standstill obligations. According to the General Court, the mere possibility of exercising decisive influence over the target can result in a gun jumping breach.

Read more

07.10.2021 NL law
ACM walks the walk: first-ever vertical price coordination fine

Short Reads - The Dutch Competition Authority (“ACM”) has claimed a first victim in its vertical restraints battle. Samsung Electronics was fined nearly EUR 40 million for having meddled in the online resale prices for televisions at seven retailers. Compared to the European Commission’s fines on four consumer electronics producers for resale price maintenance (“RPM”), the ACM’s summary decision seems to refer to a ‘light’ version of RPM: systematic price coordination without any threats, sanctions or incentives for the retailers to stick to the price.

Read more

07.10.2021 NL law
Commission reveals first piece of antitrust sustainability puzzle

Short Reads - The European Commission has published a Policy Brief setting out its preliminary views on how to fit the European Green Deal’s sustainability goals into the EU competition rules. Companies keen to be green may be left in limbo by a looming clash with more far-reaching proposals from national competition authorities. More pieces of the antitrust sustainability puzzle will fall into place as soon as the ongoing review of the guidelines on horizontal cooperation is finalised.

Read more

13.09.2021 NL law
Adopting the new Standard Contractual Clauses to secure international personal data transfers

Short Reads - Recently, the European Commission issued an implementing decision on standard new contractual clauses (“SCCs”) for the transfer of personal data to countries outside the European Economic Area. Organisations need to use the new SCCs from 27 September 2021 and onwards. Transitional periods apply for existing international data transfer agreements. To meet their obligations under the General Data Protection Regulation, organisations need to make the appropriate changes in time.

Read more

07.10.2021 NL law
Court of Appeal provides guidance for further course of proceedings in prestressing steel litigation

Short Reads - On 27 July 2021, the Court of Appeal of Den Bosch issued an interim judgment in the Dutch prestressing steel litigation, ruling on three issues: (i) the obligation of claimant to furnish facts; (ii) the assignment of claims; and (iii) the liability of the parent companies. In short, the Court of Appeal allowed the claimant Deutsche Bahn another opportunity to supplement the facts needed to substantiate its claims in the next phase of the proceedings.

Read more

09.09.2021 BE law
Digital Law Up(to)date: (1) Parliamentary initiatives about cyber attacks; (2) ‘Zero tariff’ options before the CJEU; and (3) Council of State, GDPR and encryption

Articles - In this blog, we briefly present three interesting news in the field of digital law: (1) Parliamentary initiatives to tackle cyber attacks (2) "Zero tariff" options and open internet access do not mix! (3) Council of State, GDPR and encryption: validation of a decision of the Flemish Authorities

Read more