The Court of Justice does not often interfere, on appeal, with the way fines for competition cases are calculated and scrutinised by the General Court. It will do so, however, if an error of law is made, for example.
In Case C-408/12 P YKK Corporation and others v Commission EU:C:2014:66 the Court of Justice did find an error and it did readjust the amount of the fine imposed on a company for infringing the competition rules. Here’s what happened….
Revisions of judgments are not very common. It is possible though, pursuant to Article 44 of the Statute and Article 125 of the Rules of Procedure, to ask the General Court to revise a judgment that has already become final and definitive (res judicata). The conditions that have to be met to obtain revision are strict, as you will see from this order in Case T-82/08 REV Guardian Industries and others v Commission EU:T:2014:693.
The Court of Justice (“CoJ”) handed down its judgment in a very interesting abuse of dominance case, namely Case C-295/12 P Telefónica SA v Commission on 10 July 2014. The judgment deals with many interesting 102 TFEU related issues; so several posts will follow. In this post though, I would like to touch upon the very well-structured reiteration of the previous case-law of the CoJ regarding the EU judicature’s obligation to carry out a review exercising its powers of unlimited jurisdiction, basically Case C-386/10 P Chalkor v Commission, Case C-272/09 P KME v Commission and Case C-501/11 P Schinlder Holding v Commission. Continue reading
The Court of Justice (“CoJ”) gave on 10 April 2014 its judgment on appeal in the gas insulated switchgear case C-231/11 P. The dispute concerns a cartel relating to the sale of gas insulated switchgear (“GIS”), a heavy electrical equipment which is used to control energy flow in electricity grids. The case commenced with a leniency application; the Commission then initiated its investigation, which was concluded with the imposition of a fine on several undertakings. Parent undertakings were found jointly and severally liable with their subsidiaries. The Commission decision was challenged before the General Court, which in its judgment in Cases T-122/07 to T-124/07 Siemens AG Österreich a.o v Commission found, inter alia, that the Commission failed to determine the exact amount, i.e. the shares of the fine to by paid by each of the undertakings (both parents and subsidiaries) imposed severally and jointly on them. The General Court even went on to determine itself these shares of the fine to be paid by each undertaking. Its judgment was cross-appealed by the Commission and the undertakings.
The Court of Justice has handed down three judgments relating to fines imposed on a number of undertakings involved in the gas insulated switchgear cartel. There’s an interesting and distinct point in each judgment so we’ll write about them separately.
First off will be the judgment in Joined Cases C-247/11 P and C-253/11 P Areva EU:C:2014:257. That judgment contains some interesting points about what constitutes an “undertaking” and the concept of joint and several liability of a parent company for fines for infringements of competition law committed by a subsidiary in the event of succession of companies and transfer of subsidiaries between parents. Continue reading
The Court of Justice does not often reduce a fine imposed by the Commission on an undertaking for a breach of the competition rules when the amount of the fine has been upheld by the General Court. The judgment of 27 March 2014 in Case C-612/12 P Balast Nedam NV v Commission EU:C:2014:193 is, however, such a case. The Court of Justice reduced the fine on appeal not because the General Court had exercised its unlimited jurisdiction on fines improperly but because the General Court had failed to take sufficient account of a substantive problem with the Commission’s decision relating to the company’s rights of the defence.
Let us see in more detail.