On 27 March 2014, the General Court of the European Union ("GC") handed down its judgment on an appeal brought by companies of the Saint-Gobain group and their parent company Compagnie de Saint-Gobain ("Compagnie") against a decision adopted by the European Commission in 2008 for their participation in the car glass cartel. The GC reduced the fine by € 165 million, from € 880 million to € 715 million, on the grounds the Commission had incorrectly taken into account a previous infringement to find that Compagnie was a repeat infringer.
On 12 November 2008, the Commission imposed fines totalling almost € 1.4 billion on four producers of car glass for their involvement in a cartel that operated between 1998 and 2003. Asahi/AGC Flat Glass, Saint-Gobain, Pilkington and Soliver were fined for illegal market sharing and for exchanging commercially sensitive information on deliveries of car glass in breach of Article 101 TFEU (see, VBB on Competition Law, Volume 2008, No. 11, available at www.vbb.com). Car glass is a type of safety glass used by the automotive industry in vehicle windscreens, windows, side and back lights and sunroofs. The Saint-Gobain group companies concerned and Compagnie subsequently appealed before the GC.
The GC largely upheld the Commission's decision and rejected a variety of claims brought by the applicants, including alleged breaches of their right to an impartial and independent trial, of the principle of the individual nature of penalties and of the principle of non-retroactivity and legitimate expectations. The GC also dismissed claims in relation to the parent/subsidiary principle and to certain aspects of the fine calculation methodology.
In addition, Compagnie challenged the fact that the Commission had taken account of its earlier decisions in the 1984 Benelux Flat Glass cartel and the 1988 Italian Flat Glass cartel for the purpose of establishing that Compagnie was a repeat offender, which had led the Commission to increase the fine by 60% as an aggravating circumstance.
The GC upheld Compagnie's claim but only insofar as it concerned the 1988 Italian cartel, which had involved Fabbrica Pisana, a wholly-owned subsidiary of Compagnie. The GC considered that, in identifying a repeat infringement, the Commission was not entitled to consider that the Saint-Gobain group or Compagnie could be held liable for the 1988 decision, as that decision concerned a different subsidiary of Compagnie (i.e., Fabbrica Pisana) and had not been addressed to Compagnie. Indeed, Compagnie's rights of defence would be breached, as it had not been given the opportunity to challenge the existence of the alleged economic unit with the addressee of the 1988 decision. Finally, the GC stated that the passage of a long period since the adoption of the previous infringement decision made it difficult, if not impossible, for Compagnie to challenge not only the attribution of liability, but also the elements constituting the infringement.
However, the GC distinguished the 1988 Italian cartel from the 1984 Benelux cartel. In the latter case, Compagnie itself had also been an addressee to the infringement decision in addition to its wholly-owned subsidiary, SA Glacerie de Saint-Roch. Furthermore, the GC dismissed the claim that the fact that more than 13 years, 8 months had elapsed between the previous finding of an infringement and the repetition of unlawful conduct bars a finding of repeated infringement. In that regard, the GC ruled that the Commission was entitled to consider that Compagnie was a repeat infringer, giving weight to the identical nature of the activities concerned by the infringements and the similarity of the nature of the cartels (i.e., exchange of confidential price information, customer allocation and market share stabilisation).
Considering the Commission had increased the basic amount of the fine by 60% to account for the 1984 Benelux and the 1988 Italian cartels, and that only the former could be relied on for the purposes of establishing Compagnie's recidivism, the GC considered that it was appropriate to reduce the uplift in the basic amount of the fine from 60% to 30%. As a result, the companies of the Saint-Gobain Group and Compagnie had their fine reduced by € 165 million, from € 880 million to € 715 million.
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