Antitrust and Competition – The EU Weekly Briefing
ECJ upholds E.ON fine for breach of seal during dawn raid. In January 2008, the European Commission (Commission) imposed an EUR 38 million fine on E.ON Energie AG for breach of a seal during a dawn raid (Case COMP/B 1/39.326, Commission Decision of 30 January 2008). On appeal at first instance, the Commission Decision was upheld by the General Court (T–141/08, E.ON Energie v Commission, Judgment of 15 December 2010). On 22 November 2012, the European Court of Justice (ECJ) dismissed E.ON’s attempt to have the General Court’s judgment set aside (C–89/11 P, E.ON Energie v Commission, Judgment of 22 November 2012). The ECJ held that the General Court was entitled to conclude that it was for E.ON to adduce evidence challenging the Commission’s finding that the seal had been breached, and that this did not unduly reverse the burden of proof. The ECJ confirmed that an infringement consisting of a breach of seal is particularly serious by its own nature and, accordingly, a fine representing 0.14% of E.ON’s annual turnover could not be considered excessive.
AG Opinion on attribution of parent liability in international removal services cartel. The Advocate General Kokott has handed down an Opinion on an appeal by the Commission against a General Court judgment which found that parent company Strichting Administratiekantoor Portielje (Portielje) was not liable for the cartel conduct of its subsidiary, Gosselin Group NV (Gosselin), in the international removal services cartel (see Case COMP/38.543) (T–208/08 and T–209/08, Judgment of 16 June 2011). In the opinion of the Advocate General, which is not binding on the ECJ, the General Court had erred in law in finding that a parent company of an undertaking cannot be penalised because it is not itself an undertaking. The Advocate General considers that the General Court should have instead considered whether Portielje and Gosselin were “principals of [a] joint undertaking.” The Advocate General also found that the 100% rebuttable presumption apply equally to a holding company and subsidiary relationship. In this regard, Portielje had not submitted any rebuttable evidence to show that it did not exercise decisive influence over Gosselin (C–440/11 P, Commission v Stichting Administratiekantoor Portielje and Gosselin Group NV, Judgment of 29 November 2012).
CA confirms CAT ruling that “follow on” actions be brought against named addressees. The UK Court of Appeal (CA) has dismissed an appeal by Emerson Electric (and others) against a judgment of the Competition Appeal Tribunal (CAT) which struck out “follow on” damages claims (brought under section 47A of the Competition Act 1998) against Mersen UK Portslade Ltd, formerly Le Carbone (Great Britian) Ltd (Carbone GB). In 2003, the European Commission found that the parent company of Carbone GB, Le Carbone Lorraine SA, had participated in a cartel related to carbon and graphite products (see Case COMP/38.359). Carbone GB brought an application for Emerson’s damages claim against it to be struck out on the basis that there was no decision by the Commission finding that Carbone GB had infringed Article 101(1) TFEU. The CAT struck out Emerson’s damages claim, which was appealed by Emerson to the CA. The CA found that the operative part of the Commission Decision named the undertakings to whom the decision was addressed, which did not include Carbone GB. The fact that Carbone GB was a wholly-owned subsidiary of the addressee did not mean that Carbone GB had breached competition law; accordingly, the CAT had no jurisdiction to award damages (Emerson Electric v Mersen UK Portslade Ltd  EWCA Civ 1559, Judgment of 28 November 2012).
Phase I Clearance
ECN refines its Model Leniency Programme. The ECN (composed of the Commission and the national competition authorities in the Member States) has issued a revised Model Leniency Programme (see ECN 2012 Model Leniency Programme). The main enhancement to the Programme is the possibility of submitting a summary application to the national authorities where a full leniency application has been submitted to the Commission concerning more than three Member States (previously only the first (immunity) applicant was entitled to do so) (MEMO/12/887). The Programme is not binding and the principles therein need to be implemented under the
Speech by the OFT Chairman. "Competition advocacy in a changing world", delivered at the International Competition Network Advocacy Workshop on 26 October 2012.
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© 2012 Winston & Strawn LLP