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General Court reduces ICI’s fine by 20% in 21 year soda ash saga: Jarndyce v Jarndyce revisited

16/07/10

On 25 June 2010 the General Court handed down its judgment in Case T-66/01 Imperial Chemical Industries v Commission. Imperial Chemical Industries ("ICI") appealed against the Commission's imposition of a fine for its pricing of soda ash contrary to what is now Article 102 TFEU. The General Court upheld the substance of the Commission's decision but reduced ICI's fine by 5% on the grounds that it was not a repeat offender and by a further 15% to take into account the Commission's error as to the duration of the infringement.

Two points about the case are of particular note. The first is its duration. The Soda Ash saga began as far back as April 1989 when the Commission carried out investigations at the premises of various Community producers of Soda Ash. The matter has so far taken 21 years to progress from those investigations, via the Commission's first infringement decision (which the Court of First Instance set aside on procedural grounds, a judgment unsuccessfully appealed by the Commission), and its second infringement decision in 2000 to an oral hearing of ICI's appeal before the General Court in June 2008 and the judgment just handed down. The General Court was nevertheless satisfied that there was no breach of the principle that action must be taken within a reasonable period of time.

The second relates to access to the file. When the Commission provided ICI with access to the file in relation to the second decision, it emerged that the Commission had lost at least five files which had existed at the time of the first decision and was therefore unable to provide access to them. The General Court found that the issue of access to the file was res judicata in respect of ICI, but also expressed the view that ICI had failed to establish that the loss of the files could have influenced to its detriment the conduct of that procedure and the content of the contested decision as regards the amount of the fine.

Members of Brick Court Chambers have been involved on both sides of the case. ICI has, at various times throughout the 20 year period, been represented by David Vaughan CBE QC (the only veteran of the entirety of the period), Mr Justice Barling (as he now is), David Anderson QC, Sarah Lee and Sarah Ford. The European Commission has, at various times, been represented by Judge Forwood (as he now is), James Flynn QC and Colin West.