Summary of Significant Case Developments

• 15/12/2016
• Articles

Cartels and Horizontal Agreements | European Union Level

Summary of Significant Case Developments

European Commission imposes fines totalling €485 million in euro interest rate derivatives cartel case

On 7 December 2016, the European Commission fined Crédit Agricole, HSBC and JPMorgan Chase a total of €485 million for their participation in the euro interest rate derivatives cartel. The Commission found that these banks had colluded on euro interest rate derivative pricing elements and had exchanged commercially sensitive information over varying periods of time between September 2005 and May 2008.

This decision follows the Commission’s 2013 settlement decision against four other banks, namely Barclays, Deutsche Bank, RBS and Société Générale, in relation to their involvement in the same cartel. As Crédit Agricole, HSBC and JPMorgan Chase chose not to settle with the Commission, the decision was issued under the Commission’s standard (non-settlement) cartel procedure.

European Commission fines rechargeable battery producers €166 million in cartel settlement decision

On 12 December 2016, the European Commission fined rechargeable battery producers Panasonic, Sanyo and Sony a total of €166 million for coordinating prices and exchanging sensitive business information in relation to the supply of rechargeable lithium-ion batteries between February 2004 and November 2007. These batteries are used in portable electronic and electrical devices, such as laptops and mobile phones.

The existence of the cartel was first revealed to the Commission by Samsung SDI, which was therefore exempted from fines in accordance with the Commission’s Leniency Notice. All the companies concerned agreed to settle, thereby admitting their involvement in the cartel and their liability in this respect. In return, the Commission applied a reduction of 10% to the fines. Further fine reductions were given to Sony (50%), Panasonic (20%) and Sanyo (20%) for their cooperation under the Leniency Notice.

Court of Justice provides guidance to Spanish court regarding compatibility of national law restricting tariff review with EU competition law

On 8 December 2016, the European Court of Justice (“ECJ”) handed down a judgment on requests for preliminary ruling from the Spanish courts regarding the compatibility with EU competition law of provisions of Spanish national law which make the fees of procuradores (specialised legal representatives) subject to a tariff, the review of which is limited by the courts (Cases C‑532/15 and C‑538/15, Eurosaneamientos and Others).

Specifically, the ECJ considered that EU competition law does not preclude a Member State from enacting legal provisions that sets the scale of tariffs for the legal services provided by procuradores, which may only be increased or decreased by 12%, in respect of which a national court merely checks its strict application without being in a position, save exceptional circumstances, to derogate from the price limits set by that tariff.

Advocate General Wahl recommends upholding appeals against General Court’s judgments in Italian concrete reinforcing bar cartel case

On 8 December 2016, Advocate General (“AG”) Wahl issued his opinion on six appeals lodged against the General Court’s (“GC”) judgments in connection with the Commission re-adoption of the Italian concrete reinforcing bar cartel decision. The Commission issued a new decision in 2009 after the GC annulled an earlier 2002 decision on the grounds that it had been adopted on the wrong legal basis. The GC subsequently upheld the re-adopted decision in 2014 (see VBB on Competition Law, Volume 2014, No. 12).

In his opinion, AG Wahl took the view that the 2014 GC judgments and the 2009 Commission decision should be annulled because the parties’ rights of defence were breached, insofar as they were not provided with the opportunity to present their arguments at an oral hearing following the re-adoption of the Commission’s decision. AG Wahl also considered that the parties’ rights were breached because the Commission did not expressly refer to aggravating circumstances in its Statement of Objections. However, the AG recommended that the ECJ dismiss the parties’ claims in relation to public distancing and repeated infringement (Case C-85/15 to C-89/15, Feralpi and Others).

General Court annuls Commission’s decision in envelopes cartel case for failure to sufficiently state reasons

On 13 December 2016, the General Court (“GC”) annulled the Commission’s decision in the envelopes cartel case in so far as it concerns Tompla, an envelope producer. In its judgment, the GC ruled that, due to an inadequate statement of reasons given by the Commission, Tompla was not in a position to adequately understand or dispute the fining methodology followed by the Commission in its settlement decision in light of the principle of equal treatment, and that the GC was not fully able to exercise its powers of judicial review with regards to the Commission’s compliance with that principle (Case T-95/15, Printeos, Tompla and Others).

European Commission will not renew Insurance Block Exemption Regulation

On 13 December 2016, the European Commission announced that the Insurance Block Exemption Regulation (“IBER”), which is due to expire on 31 March 2017, will not renewed. The IBER provides for an exemption from Article 101(1) TFEU for agreements between insurers relating to joint compilations, tables and studies, as well as co-(re)insurance pools, subject to market share thresholds and other specified conditions.

In March 2016, the Commission published a preliminary report in which it indicated that the insurance industry no longer appeared to require an exceptional instrument such as a block exemption to assess the compatibility of common contractual arrangements with EU competition law (see VBB on Competition Law, Volume 2016, No. 3). The Commission has now confirmed that, in its view, the IBER is no longer warranted because the Horizontal Guidelines already provide guidance on how to assess the conformity of joint compilations, tables and studies with the EU competition rules. At the same time, the Commission underscored that these forms of co-operation agreements are not automatically unlawful under Article 101 TFEU. Rather, insurers will need to assess their co-operation agreements on a case-by-case basis to determine whether they are in line with EU competition rules.

General Court dismisses appeals in smart card chips cartel case

On 15 December 2016, the General Court (“GC”) upheld the Commission’s decision in the smart card chips cartel case, confirming that Infineon and Philips had, with others, coordinated their market behaviour in the EEA through bilateral contacts that took place in the period between September 2003 and September 2005 (see VBB on Competition Law, Volume 2014, No. 9).

The GC confirmed the Commission’s findings that Infineon, Philips and others had restricted competition by object by exchanging information on the pricing of smart card chips and that their rights of defence had not been breached, in particular in connection with their right to have an oral hearing and the authenticity of certain leniency documents relied on by the Commission (Cases T-758/14, Infineon Technologies and T-762/14, Philips).