Following the European Commission’s decision on the trucks cartel matter (European Commission, Sept. 27, 2017, AT.39824) that fined Scania up to €880 million (USD 950M), the General Court of the European Union rejected Scania’s appeal (General Court of the European Union, Feb. 2, 2022, T-799/17).
To recap: For almost 14 years, between Jan. 17, 1997, and Jan. 18, 2011, several truck manufacturers throughout Europe agreed on the selling prices of their trucks weighing more than 16 tonnes. This agreement added 10% to 15% to the prices paid by their customers.
The five other companies involved in the cartel (MAN, Volvo/Renault, Daimler, Iveco and DAF) accepted the settlement procedure; however, Scania, which was initially involved in such procedure, decided to withdraw from it after discussions with the European Commission. The commission then carried on with an ordinary administrative antitrust proceeding with regard to Scania.
Therefore, the European Commission followed a “hybrid” procedure until the release of its decision.
On the one hand, Scania challenged the legality of the hybrid procedure, claiming that it was contrary to the rights of defense, presumption of innocence and duty of impartiality.
The General Court clarified the legality of the hybrid procedure by stating, first, that the “mere fact that the addressees of the settlement decision acknowledged their involvement in the infringement and admitted their guilt cannot lead to the implicit acknowledgement of Scania’s liability on account of its possible participation in those same facts” (paragraph 127).
Furthermore, no breach of rights of defense could result from the fact that Scania was not heard in the proceedings leading to the settlement decision (paragraph 162). In addition, the Commission was not bound by the factual and legal findings set forth in the settlement decision, and therefore observed its duty of impartiality toward the party that did not choose to settle.
On the other hand, with the aim of reducing the amount of the fine, Scania argued that its behavior could not constitute a single and continuous infringement.
Indeed, in the case of continuous or repeated infringements, the five-year limitation period only runs from the day on which the infringement ceased (Article 25, 2° of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty, now Articles 101 and 102 of the TFEU).
However, Scania stated that it did not actively participate in the cartel during certain periods, in particular between Sept. 3, 1988, and Feb. 3, 2000, and between Nov. 20, 2001, and April 10, 2003.
According to Scania, “a single and continuous infringement cannot encompass instances of conduct which do not constitute infringements in themselves” (paragraph 203). Therefore, taking into account such periods of time during which the infringement was interrupted, Scania asserted that the imposition of a fine should be time-barred for any infringement prior to April 10, 2003, and the decision should have been based solely on the practices that took place beginning April 10, 2003, and ending Jan. 18, 2011.
Nonetheless, the General Court pointed out that a single and continuous infringement is constituted when it can be shown that the various instances of conduct identified form part of an overall plan aimed at achieving a single anticompetitive objective (point 208).
The General Court confirmed the commission’s conclusion relating to the existence of a single and continuous infringement over the period 1997 – 2011, and stated that for “an infringement extending over a number of years, the fact that direct evidence of a company’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia; the lack of any public distancing on the part of that company may be taken into account in that regard” (paragraph 522).
Thus, Scania’s appeal was rejected in its entirety, and the victims of the cartel will be able to claim damages until Feb. 2, 2027.
For more detailed information on the rules governing competition damages claims in France, see our contribution to Legal 500, accessible via the following link: France: Competition Litigation – Country Comparative Guides (legal500.com).