In the following sections, we first provide a factual overview of the significant case developments at EU level, and thereafter provide a detailed analysis of an important substantive or procedural development addressed in one of these cases.
- Summary of Significant Case Developments
General Court dismisses appeal in the North Sea Shrimps traders cartel case
On 8 September 2016, the General Court ("GC") dismissed in its entirety the appeal lodged by Goldfish and Heiploeg against a 2013 Commission decision that had found that four North Sea shrimps traders operated an illegal price-fixing cartel (see VBB on Competition Law, Volume 2013, No. 11, available at www.vbb.com). The companies were fined over € 27 million.
In its judgment, the GC dismissed all the allegations of Commission errors, including on the use of secretly-recorded audio recordings as evidence for establishing the infringement (see Section 1.2 below) and on the failure to take into account Heiploeg's inability to pay the fine (Case T-54/14, Goldfish and Others).
Court of Justice rejects appeals in the pre-stressing steel cartel case
On 14 September 2016, the Court of Justice of the European Union ("ECJ") dismissed appeals lodged by Ori Martin/Siderurgica Latina Martin (SLM) and Trafilerie Meridonali against a price-fixing and market sharing pre-stressing steel cartel. The ECJ's judgment confirmed the General Court's judgments (see VBB on Competition Law, Volume 2015, No. 7, available at www.vbb.com), which upheld the Commission's decision and rejected the parties' appeals (see VBB on Competition Law, Volume 2010, No. 6, available at www.vbb.com).
Of note, in the Ori Martin/SLM case, the ECJ ruled that the GC had not infringed the principle of legal certainty by applying the 2006 Fining Guidelines (although the infringement began in 1984) and that the GC's judgment contained sufficient statement of reasons establishing Ori Martin's joint liability over the conduct of its subsidiary, SLM (Case C-490/15, Ori Martin SA and Siderurgica Latina Martin SpA).
In the Trafilerie Meridonali case, the ECJ held that the GC had not made any errors in assessing Trafilerie Meridonali's ability to pay the fine, or in the calculation of the fine imposed (Case C-519/15, Trafilerie Meridionali).
Court of Justice upholds General Court's judgment in car glass cartel case
On 7 September 2016, the ECJ dismissed an appeal lodged by Pilkington concerning the 2008 Commission decision (see VBB on Competition Law, Volume 2008, No. 11, available at www.vbb.com) against a market-sharing cartel in the car glass sector. The ECJ's judgment confirmed the GC's judgment, which upheld the Commission's decision and rejected the parties' appeals (see VBB on Competition Law, Volume 2014, No. 12, available at www.vbb.com).
In its judgment, the ECJ ruled that (i) no errors had been made in calculating the basic amount of the fine in so far as it included sales made during the infringement period on the basis of contracts concluded prior to that period; (ii) the Commission was entitled to use the average exchange rate of the British pound for the business year prior to the adoption of the decision, rather than the exchange rate of the date of the decision, for the purpose of calculating the 10% cap on the fine; and (iii) no errors had been committed as regards the alleged disproportionate nature of Pilkington's fine in light of the fact that its activity is less diversified than that of the other cartelists (Case C-101/15, Pilkington Group).
- Analysis of Important Substantive and Procedural Developments
North Sea Shrimps traders cartel case - The use of secretly-recorded telephone conversations and transcripts of telephone conversations as proof of a cartel infringement
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which had been obtained in the context of unannounced inspections carried out at the premises of the leniency applicant.
Heiploeg claimed that the use of these recordings and transcripts were inadmissible to establish a breach of Article 101 TFEU on the basis of the case-law of the European Court of Human Rights ("ECtHR").
In its judgment, the GC noted that Heiploeg had not disputed the content or the authenticity of the recordings and notes. Heiploeg had also not disputed the legality of the unannounced inspection. The key question was, therefore, whether the Commission could rely on evidence it had obtained legally in the context of unannounced inspections, even though such evidence had been possibly illegally gathered by a third party in violation of, for instance, Article 8 of the European Convention on Human Rights ("ECHR") (i.e., the right to privacy).
The GC noted that EU law does not explicitly preclude the use of evidence obtained unlawfully by private parties, but conditioned the use by the Commission of the secretly-gathered evidence to two conditions. First, the party against whom such evidence is used should not be deprived of a fair trial or of its rights of defense. Second, such evidence should not be the only evidence relied on to establish an infringement.
According to the GC, both conditions were fulfilled in the present case. In the course of the administrative proceedings, Heiploeg had been provided access to all the recordings and transcripts and the possibility to comment on them. Furthermore, the secret recordings and transcripts were supported by other evidence in the Commission's file.
Consequently, the GC dismissed Heiploeg's plea for annulment based on the alleged illegality of the use of the recordings and transcripts as proof of the cartel infringement.
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