On 24 September 2020, the European Court of Justice ("ECJ") fully dismissed an appeal brought by Prysmian, therefore upholding the European Commission's ("Commission") decision to fine Prysmian EUR 104.6 million for taking part in an international power-cable cartel.
| what you need to know - key takeaways |
- The Commission has the power to take copy-images of data without first examining the nature of documents during a dawn raid.
- The Commission also has the power to take copy-images away from a premises for later review.
- When two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not preclude imposing a penalty on the entity to which its economic activity has been transferred.
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On 2 April 2014, the Commission fined 11 producers of power cables for their participation in a market-sharing cartel. Appeals against the Commission's decision were dismissed by the General Court in its judgment dated 12 July 2018 (see our summary). Subsequently, one of the cartel's participants, the Prysmian group ("Prysmian") (formerly Pirelli & C. SpA), appealed to the ECJ.
In its judgment, the ECJ dismissed all five of Prysmian's grounds for appeal:
- The ECJ confirmed that, pursuant to Article 20(2)(b) of Regulation No 1/2003, during a dawn raid the Commission is entitled to make copy-images of data without first examining the nature of documents which contain such data, as long as it guarantees the existence of procedural safeguards. It may also continue the inspection at its own premises in order to ensure the effectiveness of the inspection without needlessly increasing the interference with an undertaking's operations.
- The General Court was not wrong to conclude that the Commission could make its subsidiary Prysmian Cavi e Sistemi liable for the entire duration of the infringement under the principle of economic continuity, even though the company was not established until two years after the cartel began operating.
- The ECJ confirmed the General Court's assessment of the existence of a single and continuous infringement.
- The General Court did not err in determining the starting point of the infringement.
- The ECJ rejected Prysmian's challenge of the calculation of the fines.
This decision is aligned with former case law. Indeed, the ECJ has recently rendered a similar ruling, with regards to Prysmian's first ground for appeal, in another case concerning the power cables cartel (see ECJ, case C-606/18 P, Nexans, 16 July 2020).
With thanks to Anne Dos of Ashurst for her contribution.
