On 27 March 2014, the Court of Justice of the European Union ("ECJ") handed down a ruling partially setting aside the GC's judgment of 27 September 2012 in the road bitumen cartel case and reducing the fine imposed on the Dutch construction company Ballast Nedam from the initial amount of € 4.65 million to € 3.45 million.
In September 2006, the European Commission imposed fines totalling € 266.7 million on fourteen companies for having participated in a single and continuous cartel during the period 1994 to 2002, in breach of Article 101 TFEU, by regularly fixing the price of road bitumen in the Netherlands, fixing rebates for construction companies, and imposing systems for the monitoring of pricing agreements (See, VBB on Competition Law, Volume 2006, No. 9, available at www.vbb.com). A fine of € 4.65 million was imposed jointly and severally on Ballast Nedam and its subsidiary Ballast Nedam Infra ("BN Infra") for their involvement in the cartel.
Following appeals by Ballast Nedam and BN Infra, the GC upheld the total amount of the fine imposed on Ballast Nedam, but capped the liability of BN Infra at € 3.45 million (See VBB on Competition Law, Volume 2012, No. 10, available at www.vbb.com). In particular, the GC found that the Commission had failed to clearly state in the Statement of Objections ("SO") that it intended to hold BN Infra liable, in its capacity as a parent company, for the participation of its wholly-owned subsidiary BNGW in the cartel during the period between June 1996 and 20 September 2000. According to the GC, BN Infra was thereby prevented from effectively exercising its rights of defence. As regards Ballast Nedam, however, the GC held that, even though the wording used in the SO could have been clearer on the relationship between BN Infra and BNGW, the Commission had given Ballast Nedam enough information on its intention to apply the presumption of decisive influence by Ballast Nedam over BN Infra and BNGW. Thus, Ballast Nedam could not have been unaware that it was likely to be the addressee of the Commission's decision.
In its judgment, the ECJ found that the GC had erred in law with regard to the requirement that the SO be sufficiently clear, as the Commission had not indicated that the SO was addressed to Ballast Nedam on the ground that it exercised decisive influence over BNGW's commercial conduct. Thus, the ECJ found that Ballast Nedam's rights of defence during the administrative procedure had been infringed and, as a result, annulled the GC's judgment as regards the imputation of BNGW's conduct to Ballast Nedam. The ECJ then reduced the amount of the fine imposed jointly and severally on Ballast Nedam to the amount set by the GC for BN Infra's participation in the cartel, namely € 3.45 million.
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