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European Union: EU General Court Does Not Expect Commissioners To Attend Hearings And Dismisses Bolloré’s Appeal Against Commission’s Re-Adoption Of Carbonless Paper Cartel Decision
On 27 June 2012, the EU's General Court ("GC")
handed down its judgment on the appeal brought by French investment
and industrial group Bolloré against the European
Commission's re-adoption of its decision in the carbonless
paper cartel. The GC upheld the fine of € 21.26
million and ruled that the appeal should be dismissed in its
entirety.
In its initial December 2001 decision (the "2001
Decision"), the Commission had imposed a fine of
€ 22.8 million on Bolloré for its
participation in a series of price-fixing agreements and concerted
practices in the carbonless paper sector.
In 2009, the European Court of Justice ("ECJ") quashed
the 2001 Decision for procedural reasons. The ECJ found that
Bolloré's rights of defence had been infringed because
Bolloré could not have foreseen from the wording of the
original Statement of Objections that the Commission intended to
hold it liable not only as a parent company of the cartel
participant, Copigraph, but also on account of its own involvement
in the cartel.
After sending a new Statement of Objections in December 2009,
which addressed both the parental liability and the direct
involvement of Bolloré, the Commission readopted its
decision in June 2010, correcting the procedural error which had
led to the annulment of the 2001 Decision (see VBB on Competition
Law, Volume 2010, No. 6, available at
www.vbb.com). As, during the readoption procedure,
Bolloré no longer contested the participation of its former
subsidiary Copigraph in the early stage of the cartel, the
reduction of the fine for cooperation under the Leniency Notice was
increased from 20% to 25%. The fine imposed on Bolloré was
thereby reduced from € 22.68 million to
€ 21.26 million.
Bolloré appealed before the GC against the re-adoption of
the Commission decision on the grounds, among others, that the
sanction imposed on it was adopted in breach of the principle of
legality in relation to quasi-criminal sanctions and more generally
of the principle of legal certainty, as well as the principle of
personal responsibility. The GC rejected these claims.
The GC also rejected the claim that Bolloré's right
to a fair trial has been breached because no member of the
Commission had taken part in Bolloré's hearing. The GC
noted that within the context of a procedure before the Commission
concerning the application of Article 101 TFEU, there is nothing to
prevent the members of the Commission who are responsible for
taking a decision imposing fines from being informed of the outcome
of the hearing by such persons as the Commission has appointed to
conduct the hearing. Thus, the fact that the applicant was not
heard by the members of the Commission at its hearing cannot amount
to a defect in the contested decision.
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