Short Reads

General Court rejects Trioplast's action for annulment of a Commission notice to pay interest

General Court rejects Trioplast's action for annulment of a Commission notice to pay interest

General Court rejects Trioplast's action for annulment of a Commission notice to pay interest

02.06.2016

On 12 May 2016, the General Court (“GC”) dismissed an action for annulment brought by Trioplast Industrier AB (“Trioplast”) against a letter from the European Commission putting Trioplast on notice to pay interest on a fine imposed following an infringement of the cartel prohibition. The GC confirmed that interest accrues from the moment that the Commission initially imposes a fine, even if during subsequent appeal proceedings the amount of the fine is reduced.

The GC also ruled that a court order giving due effect to the outcome of related proceedings does not affect the Commission's ability to impose default interest.

In November 2005, the Commission imposed a fine on one of Trioplast's subsidiaries, Trioplast Wittenheim, for its participation in anticompetitive practices in the industrial bag sector. As Trioplast Wittenheim's parent company, Trioplast was held jointly and severally liable for an amount of EUR 7.73 million. Trioplast Wittenheim's former parent companies, FLSmidth and FLS Plast (“FLS”), were also held liable for part of the fine. Trioplast decided not pay the fine at once and provided a bank guarantee instead.

Trioplast and FLS separately appealed the decision of the Commission. In September 2010,  the GC reduced the fine imposed on Trioplast to EUR 2.73 million. In addition, the  GC pointed out that the outcome of FLS's appeal might warrant a further adjustment of the fine imposed on Trioplast, and that it would fall to the Commission to do so.

In August 2012, Trioplast made a provisional payment of EUR 2.73 million. However, it refused to pay interest over that amount as it was of the opinion that the GC had annulled the 2005 decision and that interest could only start to accrue after the Commission made a new decision. When  the Commission sent Trioplast a final notice to pay interest, Trioplast brought an action for annulment before the GC. In the alternative, Trioplast claimed damages from the Commission in the amount of the default interest and charges it had incurred in providing a bank guarantee.

The GC, however, declared Trioplast's action for annulment to be inadmissible. It found that by sending the final notice, the Commission did not adopt an act producing binding legal effects capable of affecting Trioplast's interests, but "merely confirmed the conditions to which the Commission made the suspension of payment of the fine subject during the [FLS] legal proceedings". After the Court of Justice delivered its judgment in the FLS proceedings, the original Commission decision also became binding on Trioplast. This ended the suspension of payment of the fine, thereby obliging Trioplast to pay the fine immediately.

With regard to the action for damages, the GC ruled that it was Trioplast's own choice to provide a bank guarantee. If it had paid the fine immediately, Trioplast would not have had to pay the default interest. The GC ruled that there was therefore no causal link and rejected Trioplast's claim for damages, thereby following its long-standing case law on the non-contractual liability of EU institutions.

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

  1. Commission blocked Hutchison's proposed acquisition of Telefónica UK
  2. General Court confirmed that German law on renewable energy amounts to State aid
  3. European Commission publishes guidance on the notion of State aid
  4. District Court of Rotterdam upheld the ACM's unconditional clearance decision in telecoms merger KPN/Reggefiber
  5. Rotterdam District Court considered "franchise agreements" in breach of competition law in launderette cartel case
  6. UK High Court held that territorial limits apply to EU cartel damages claims

Team

Related news

07.02.2019 NL law
The ACM follows EU approach in its first pharmaceutical merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently reviewed its first merger between two pharmaceutical companies. In its conditional clearance of Aurobindo's acquisition of certain European Apotex assets, the ACM followed the European Commission's approach in assessing the merger's impact on competition. Companies will welcome the news that pharma mergers will be reviewed in a similar fashion, irrespective of whether the ACM or the European Commission conducts the review.

Read more

07.02.2019 EU law
Digitisation and competition law: past, present and future

Short Reads - It is nearly time for the European Commission to reveal its course of action in digitisation and competition law. Feedback from a public consultation and the recent conference on 'Shaping competition policy in the era of digitisation' together with the upcoming expert panel's report on the future challenges of digitisation for competition policy are likely to shape the Commission's course of action.

Read more

07.02.2019 NL law
Follow-on cartel damages claim dismissed: don't bury courts under paper work

Short Reads - A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, detailed and uncluttered information showing (i) which party purchased (ii) which products from (iii) which manufacturer for (iv) which amount, preferably with copies of the relevant agreements.

Read more

07.02.2019 NL law
The need for speed in mergers is no reason to ignore rights of defence

Short Reads - On 16 January 2019, the European Court of Justice clarified the procedural guarantees the European Commission needs to provide to merging parties during merger reviews. According to the Court of Justice, the General Court (GC) had rightly annulled the Commission's decision to prohibit the merger of UPS and TNT. UPS's right of defence had been infringed because the Commission had failed to share the final version of the econometric model with UPS before adopting its prohibition decision.

Read more

28.01.2019 LU law
The Grand Duchy of Luxembourg implements the Register of Beneficial Owners Law

Articles - The Grand Duchy of Luxembourg has fulfilled its European obligations in the fight against money laundering and the financing of terrorism by transposing Directive 2015/849 of 20 May 2015 (also known as the 4th EU AML Directive) into national law with the brand new Law of 13 January 2019 (the RBE Law). Below is an overview of the important disclosure obligations that will soon apply to a wide range of Luxembourg entities.

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 – en cookieverklaring