Short Reads

Court of Justice dismisses Toshiba's appeal against the gas-insulated switchgear fine

Court of Justice dismisses Toshiba's appeal against the gas-insulated

Court of Justice dismisses Toshiba's appeal against the gas-insulated switchgear fine

01.08.2017 NL law

On 6 July 2017, the European Court of Justice dismissed an appeal brought by Toshiba regarding its participation in the gas-insulated switchgear (GIS) cartel, upholding the General Court's (GC) judgment of 19 January 2016 and making the fine imposed on Toshiba final. The judgment shows that the European Commission is able and willing to repair any breach of the principle of equal treatment in the rare occasions in which this leads to the annulment of a fining decision.

Background of the dispute

In January 2007, the Commission imposed fines amounting to EUR 750 million on twenty European and Japanese companies for in essence reserving the EU market for the European producers and the Japanese market for the Japanese producers, including Toshiba.

On 12 July 2011, the GC partially annulled the 2007 decision on the ground that the Commission had infringed the principle of equal treatment in the calculation of the fine imposed on Toshiba by taking a different reference year than for the European members of the cartel. The Commission subsequently re-imposed the fines using the correct reference year, following a simple letter of facts and without issuing a new Statement of Objections (SO).

Toshiba's appeal against the new Commission decision was entirely dismissed by the GC in 2016. This judgment has now been confirmed by the Court of Justice.

No infringement of Toshiba's rights of defence

The Court of Justice held that the applicant's right to be heard was satisfied by simply issuing a letter of facts and not a second SO. In its reasoning, the Court of Justice found that the re-imposition of the fine was merely an extension of the 2007 procedure and the partial annulment of the original Commission decision did not affect the validity of the preparatory measures.

Interestingly, the Court confirmed that, though "it may be desirable", the parties' right to be heard does not require the Commission to specify "the way in which it proposes to employ the imperative criteria of the gravity and the duration of the infringement when determining the amount of the fines".

No error in the calculation of the fine

The Court of Justice also dismissed Toshiba's arguments with regard to the calculation of the fine.

Although Toshiba's fine was calculated under the old Commission Fining Guidelines, it is interesting to note that the Court confirmed the use of the starting amount of the fine assigned to TM T&D, the 50:50 joint venture in which Toshiba had transferred its GIS activities in 2002. Since following the transfer of activities to TM T&D, Toshiba had no sales in 2003 – the relevant reference year for the calculation of the fine – its fine could not be calculated in the exact same manner as that of the European producers. In addition, calculating a virtual 2003 turnover for Toshiba by splitting TM T&D's turnover and comparing it to the actual turnover of the European cartel participants, as Toshiba proposed, would not appropriately reflect the weight in the infringement that was exerted through TM T&D.

This article was published in the Competition Law Newsletter of August 2017. Other articles in this newsletter:

1. Recent enforcement action demonstrates an increasing focus on compliance with procedural EU merger rules
2. Trade and Industry Appeals annuls fine imposed on real estate traders
3. District Court of Rotterdam upheld ACM's decision to clear lottery merger
4. ACM closes probe into Fox over live-soccer TV rights due to lack of evidence of consumer harm
5. District Court of The Hague rules on ACM's powers to select and inspect digital data

Team

Related news

10.10.2018 NL law
Ongevraagd advies Raad van State: normering van geautomatiseerde overheidsbesluitvorming

Short Reads - Op 31 augustus 2018 heeft de Afdeling advisering van de Raad van State (hierna: "Afdeling advisering") een 'Ongevraagd advies over de effecten van de digitalisering voor de rechtsstatelijke verhoudingen' betreffende de positie en de bescherming van de burger tegen een "iOverheid" uitgebracht. Het gebeurt niet vaak dat de Afdeling advisering zo een ongevraagd advies uitbrengt. Dit onderstreept het belang van de voortdurend in ontwikkeling zijnde technologie en digitalisering in relatie tot de verhouding tussen de overheid en de maatschappij.

Read more

01.10.2018 EU law
UK Court upholds fine against Ping for online sales ban

Short Reads - On 7 September 2018, the UK Competition Appeal Tribunal (CAT) upheld the UK Competition and Market Authority's (CMA) decision fining Ping Europe Limited, a manufacturer of golf clubs, for violating EU and UK competition law by prohibiting two UK retailers from selling Ping golf clubs online. While the CAT reduced the fine from £1.45 million to £1.25 million, it confirmed that outright online sales bans in the context of selective distribution agreements are restrictive of competition by object.

Read more

01.10.2018 EU law
Court of Justice refers case against Infineon in relation to smart card chips cartel back to the General Court

Short Reads - On 26 September 2018, the European Court of Justice partially set aside the judgment of the General Court in the smart card chips cartel case. Infineon had argued that the General Court wrongfully assessed only five out of eleven allegedly unlawful contacts. The Court agreed with Infineon insofar as its argument related to the amount of the fine imposed. Philips had also appealed the General Court judgment but that appeal was dismissed in its entirety meaning that the Court of Justice upheld the European Commission's decision and fine.

Read more

01.10.2018 EU law
Dutch Trade and Industry Appeals Tribunal annuls mail market analysis decision

Short Reads - On 3 September 2018, the Trade and Industry Appeals Tribunal (CBb) annulled the market analysis decision regarding 24-hour business mail issued by the Dutch Authority for Consumers and Markets (ACM) on 27 July 2017. In appeal proceedings filed by PostNL, the CBb ruled that the ACM had failed to demonstrate that digital mail was not part of the relevant market for 24-hour business mail.

Read more

26.09.2018 EU law
Algemene bepalingen inzake oneerlijke handelspraktijken wijken voor specifiekere regelgeving

Articles - In geval van strijdigheid tussen de Richtlijn Oneerlijke Handelspraktijken[1] (en bij uitbreiding de omzettingsbepalingen in Boek VI WER) en andere Europeesrechtelijke voorschriften betreffende specifieke aspecten van oneerlijke handelspraktijken, hebben deze laatste voorrang (zie artikel 3, lid 4 van de Richtlijn Oneerlijke Handelspraktijken). Dat dit tot interessante discussies kan leiden, bleek uit een recent arrest van het Hof van Justitie[2].

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