On 23 June 2010, the European Commission ('Commission') imposed fines totalling €662 million on seventeen bathroom equipment manufacturers due to their involvement in a price-fixing cartel in breach of Article 101 TFEU. The cartel was found to have operated for 12 years, across six EU countries: Germany, Austria, Italy, Belgium, France and The Netherlands, affecting businesses, such as builders and plumbers, as well as consumers (see Community Week issue 477).
Five of the seventeen companies have now lodged appeals against the Commission's decision, namely: Duravit, Rubinetteria Cisal, Rubinetterie Teorema, Mamoli Robinetteria and Wabco Europe. Each of the grounds for appeal generally concern both the substance of the infringement and the level of fine. For example:
- Duravit, fined € 29,266,325, claims that the Commission failed to provide enough evidence to prove that it engaged in price-fixing. Additionally, according to Duravit, the Commission incorrectly calculated its fine and violated its rights of defence and its right to an oral hearing because, inter alia, the procedure was too long and it was prejudiced by constant (and in the end complete) staff turnover.
- Rubinetteria Cisal, fined € 1,196,269, alleges that it did not participate in any cartel, as it only exchanged information that, at the time, was no longer sensitive.
- Mamoli Robinetteria, fined € 1,041,531, alleges that the Commission violated its rights of defence, as well as the principle of equal treatment. It claims the other defendants were able to put forward submissions in their defence relating to circumstances that had not been communicated to Mamoli.
Interestingly, Mamoli, is also claiming that the Commission failed to take account of its critical economic situation and that the fining decision adopted was unsuitable given Mamoli's inability to pay. This claim may lead to the General Court, for the first time, reviewing the Commission's new 'refined' policy towards companies in financial difficulties.
In this case, the Commission received ten inability to pay requests but only granted three (the companies that were successful were not named in order to keep their financial positions confidential). At the time, the Commission stressed that it had taken steps to keep its assessment of inability to pay claims objective and even handed. It remains to be seen however whether the new policy and its application in this case, will withstand the scrutiny of the General Court.
To view Community Week, Issue 496 – 5 November 2010 in full, click here.
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