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Court of Justice clarifies test on concerted practices and standard of review of Commission decisions setting fines


The Court of Justice has dismissed Solvay SA’s appeal against its fine of EUR139.50 million for its participation in the bleaching agent cartel (Case 455/11 P)

In its judgment of 5 December 2013, the Court made a number of important findings. Firstly, it reiterated the principle that, when seeking an reappraisal of facts and assessment of evidence by the General Court, a party must plead a distortion of the evidence and such distortion must be obvious from the documents on the Court’s file. Second, it applied and clarified its ruling in Case T-8/08 T-Mobile Netherlands, concerning the test for determining the existence of a concerted practice, and circumstances where an undertaking may rebut a presumption of such a concerted practice. Third,  it held that when the EU courts review the legality of a decision imposing fines for infringement of the competition rules, they cannot use the Commission’s margin of discretion, neither as regards the choice of factors taken into account in the application of the criteria mentioned in the Commission’s Fining Guidelines, nor as regards the assessment of those factors as regards waiving an in-depth review of the law and of the facts (applying its judgment in Case C‑386/10 P Chalkor v Commission [2011]). In the present case, the Court of Justice found that the General Court had carried out the necessary in-depth review in which it itself assessed the evidence adduced to the Commission by the relevant parties under the Leniency Notice. Finally, the Court of Justice dismissed the Commission’s cross-appeal which challenged the General Court’s reduction of the fine that had been imposed on Solvay.

The judgment is here.

The CJEU press release is here.

Margaret Gray acted for the European Commission before both the Court of Justice and, at first instance, before the General Court.