Leniency Notice interpreted by General Court

05/07/11

The General Court of the European Union has given judgment in an action brought by Solvay SA challenging the infringement decision and fine imposed upon it following its participation in the hydrogen peroxide and perborate cartel.

The cartel, which lasted from 31 January 1994 until 31 December 2000, consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production, allocating market shares and customers, and fixing and monitoring prices. Fines totaling €388.13 million were imposed on a number of companies.

As regards the duration of Solvay's infringement, the General Court discussed in some detail the legal principles governing the standard of evidence that the European Commission must meet in order to establish an infringement of Article 101(1) TFEU. It held that, while there was a sufficient body of evidence to warrant the Commission's finding that Solvay had participated in the cartel from May 1995 until 31 December 2000, the evidence for the period from May 1995 back to 31 January 1994 did not meet the requisite standard. The Court reduced the fine to take account of this reduced period of participation.

As regards the application by the Commission of its 2002 Notice on immunity from fines and reduction of fines in cartel cases ("the Leniency Notice"), the Court was faced with a challenge based on the relative timings of leniency applications. The Court rejected Solvay's argument that its leniency application had to be regarded as having been lodged at the time when it had contacted the Commission by telephone and had requested a meeting with a view to making an oral statement. Rather, the Court emphasised that, in order to qualify for a reduction in the fine, a company's evidence must meet the "significant added value" test set out in the Leniency Notice itself, by providing evidence of such value in the light of the evidence already in the Commission's possession. By deciding to disclose information orally, a company takes a risk that another member of the cartel may disclose to the Commission in writing, and before it, evidence of "significant added value".

The General Court did find that the Commission ought to have given Solvay a larger reduction in its fine for cooperation with the Commission during the investigation. In total, the Court reduced Solvay's fine, which was initially €167.06 million, to €139.50 million.

The judgment is here.