#antitrust #ABASAL
The note below was posted on the listserve of the International Committee of the Section of Antitrust Law, American Bar Association, and is an example of the timely reports provided to members.
I. Today, the European Commission (Commission) fined 11 airlines a total
of EUR 799,5 million for fixing prices in their cargo business. These
carriers coordinated their action on surcharges for fuel and security
without discounts over a six year period. The cartel arrangements
consisted of numerous contacts between airlines, at both bilateral and
multilateral level, covering flights from, to and within the EEA. Airlines
providing airfreight services primarily offer the transport of cargo to
freight forwarders, who arrange the carriage of these goods including
associated services and formalities on behalf of shippers.
At the same time, the Commission allegations of collusion on two other
surcharges and regarding freight rates in the Statement of Objections have
been dropped from the case for insufficient evidence. The Commission also
dropped charges against another 11 carriers and one consultancy firm which
had previously received the Statement of Objections for the same reason.
All carriers were granted a 50% reduction on sales between the EEA and
third countries in order to take into account the fact that on these
routes part of the harm of the cartel fell outside the EEA. The Commission
increased the fine for SAS by 50% for its previous involvement in a cartel
in the airline sector. All carriers received a reduction of 15% on account
of the general regulatory environment in the sector which can be seen as
encouraging price coordination. Four carriers were also granted a 10%
reduction for limited participation in the infringement. As the fines on
two companies would have exceeded the legal maximum of 10% of their 2009
turnover, the amount (before possible leniency considerations) was reduced
to this level.
Five carriers applied for a reduction claiming inability to pay the fine.
However, none of the applications met the conditions for a reduction.
II. A couple of weeks ago, there were a few interesting decisions/opinions
regarding parent liability for cartels. The General Court held in T-24/05,
Alliance One and Others vs. Commission (i) that liability cannot be
imposed on a parent company that has pure financial interests (see para
195 seq). In this respect see also para 67 of the Opinion of the General
Advocat Kokott dated ? 23.4.2009 in C-97/08? P, Akzo Nobel NV ua vs
Commission, decision by the ECJ dated 14 September 2010.? (ii) Regarding
Joint Ventures the Court held that where an undertaking is under the joint
control of two or more other undertakings or persons, those undertakings
or persons are by definition able to exercise decisive influence over it.
That is not enough, however, to enable them to be held liable for the
infringement of the competition rules committed by the undertaking which
they control jointly, because such liability also requires fulfillment of
the condition concerning the actual exercise of decisive influence. If
those conditions are fulfilled, it would be possible to hold the various
undertakings or persons which exercise joint control liable for the
unlawful conduct of their subsidiary, as the judgment in Case T-314/01
Avebe v Commission [2006] ECR II-3085 illustrates. In that case, the
General Court upheld a Commission decision attributing to two companies,
each with a 50% shareholding in a subsidiary and having joint management
power in the commercial management of the subsidiary, liability for the
unlawful conduct of that subsidiary. If it transpired that, in reality,
only one of the undertakings or persons holding joint control in fact
exercises decisive influence over the conduct of their subsidiary, or if
other specific circumstances were to justify it, the Commission would be
able to hold only that undertaking or person jointly and severally liable,
with its subsidiary, for the infringement committed by the subsidiary.
III. Regarding a linked subject matter, Advocate General Yves Bot stated
on 26 October 2010 in C-352/09 P, ThyssenKrupp vs Commission, that
competition law is for everyone mandatory law, the application of which
cannot be excluded by contractual agreements. Hence, an agreement between
two parties declaring that the application of competition rules should be
differ from the common rules should be void regarding the liability
towards the Commission.
For additional information please find
1. Commission Press release at
2.Judgment of the General Court T-24/05 Alliance One vs
Commission dated ? 27 October 2010, ? at
3.Opinion of the Advocate General in C-352/09 P, ThyssenKrupp vs
Commission dated 26 October 2010 at
ubmit=Rechercher (no English version available).
Kind regards,
______________________________________
Christina Hummer
Dr. iur., LL.M. (NYU)
Solicitor (England & Wales) / Attorney-at-Law (New York)
Saxinger Chalupsky & Partner
Rechtsanwälte GmbH
B-1040 Brussels, Rue de Pascale 22
Tel +32 2 230 78 00
Fax +32 2 230 78 10
