‘Single and continuous infringement’ of Article 101 interpreted by General Court

17/11/11

The General Court of the European Union has given judgment in an action brought by Low & Bonar and BTF, reducing the fine imposed upon those companies following the participation by their subsidiary, BPP, in the cartel on the plastic industrial bags market.

By its judgment, the General Court considers the relevant legal principles applying and the facts that the Commission must establish in order to prove a ‘single and continuous infringement' for the purposes of Article 101 TFEU. In this case, the General Court held that the Commission had lawfully concluded the existence, in principle, of a single and continuous infringement at various levels of the cartel and across various geographic groupings. However, it concluded that the Commission had over-estimated the duration of BPP's involvement in the infringement, on the basis that it had not been proven that BPP knew, or should reasonably have known, that its participation in the activities of certain sub-groups of the cartel entailed its accession, before a certain date, to the collusive plan agreed at the overall level of the cartel. An appropriate reduction in the level of the applicants' fine, imposed upon them jointly and severally as parent companies, was made by the General Court.

All other pleas by the applicants were dismissed, including those relating to BPP's allegedly passive role in the cartel, the alleged excessive level of the fine, and failure to observe the ceiling on fines laid down by Article 23 of Regulation 1/2003.

The judgment is here.

Court of Justice press release on this and related judgments