Short Reads

Court of Justice confirms Commission's approach in its first hybrid settlement case

Court of Justice confirms Commission's approach in its first hybrid settlement case

Court of Justice confirms Commission's approach in its first hybrid settlement case

01.02.2017 NL law

On 12 January 2017, the Court of Justice fully dismissed the appeal of Timab and its parent company Roullier (the "Roullier group") against an earlier General Court ("GC") ruling in the animal feed phosphate cartel.

Initially, the Commission opened settlement discussions for all participants in the cartel. However, Timab decided to pull out of the settlement procedure after the Commission communicated the fine range it intended to impose. Ultimately, following an extended procedure, the Commission fined Timab EUR 20 million more than the amount proposed during the settlement discussions, despite reducing the infringement's duration by 15 years. Timab's higher fine for a shorter period can be explained by the Commission's inability to rely on evidence Timab submitted with regard to the excluded infringement period. That evidence warranted a higher reduction of the fine during the settlement procedure but was of less relevance for the infringement established in the ordinary procedure. The Commission's approach was upheld by the GC [see our June 2015 Newsletter]. The Roullier group appealed this judgment.

The Court of Justice upheld the GC's conclusion that the appellants' procedural rights were not violated when they switched to the ordinary procedure. In its reasoning, the Court emphasized that Timab had gained procedural rights inherent to the ordinary procedure, such as getting full access to the evidence file, receiving a full statement of objections and the right to an oral hearing. "Consequently, the appellants were in no way legally harmed by that approach, in which the elements, described as ‘new’, [...] were taken into account." The Court confirmed that the appellants could not rely on any legitimate expectation that the estimated fine communicated to them during the settlement procedure would be maintained in the ordinary procedure.

The ruling of the EU's highest Court on the first "hybrid" settlement case underlines the risks of pulling out of settlement discussions. The distinct nature of both procedures allows the Commission to take additional and new information into account when determining the gravity and duration of the infringement in the course of the ordinary procedure and on this basis depart from the (maximum) fine ranges communicated during the course of the settlement procedure.

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

  1. Court of Justice clarifies rules on evidence in bathroom fittings cartel judgments
  2. Court of Justice confirms the fine imposed on Toshiba and Panasonic in the cathode ray tubes cartel
  3. General Court awards damages for failure to adjudicate within a reasonable time
  4. District Court of Rotterdam confirms that investment firms may be held liable for conduct of portfolio companies

Team

Related news

07.11.2019 NL law
Safeguarding legal privilege: better safe than sorry?

Short Reads - The European Court of Justice recently ruled that the European Commission does not have to take additional precautionary measures to respect the right of legal professional privilege when conducting a new dawn raid at the same company. Companies are well-advised to mark clearly all communications covered by legal privilege as 'privileged and confidential' and to keep all privileged communication separate from other communication.

Read more

12.11.2019 EU law
Third country bids in EU procurement: always excluded?

Articles - The European Commission recently issued guidance on the participation of third country bidders in public procurement. It clarified bids may be excluded, but remains silent on whether they may be accepted and under which conditions. The Commission is of the opinion that contracting authorities or entities can exclude bids if no access is secured. However, it does not discuss if and under which conditions contracting authorities or entities can allow foreign bids if no access is secured.

Read more

07.11.2019 NL law
Tackling Big Tech up-front? Time to stop thinking and start acting

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring