Campine's car battery recycling cartel fine halved

On 7 November 2019, the General Court ("GC") partially annulled with respect to Campine the Commission's decision in the car battery recycling cartel case. While the Commission was correct to establish that Campine had participated in an unlawful cartel, the GC concluded that the Commission erred in its findings on the duration of the infringement and on the fine reduction for mitigating circumstances. Accordingly, it reduced the company's original fine from €8.1 million to €4.3 million.

Factual background

In February 2017, the Commission concluded that Campine, together with three other recycling companies, participated in a cartel aimed at fixing the purchase prices of scrap lead-acid automotive batteries in Belgium, France, Germany, and the Netherlands. The companies exchanged information and agreed on target prices, maximum prices and volumes to buy from suppliers. They also exchanged information on the prices offered by/ agreed with suppliers in order to limit their bargaining power.

The Commission found that Campine participated in the infringement without interruption for 3 years and 4 days despite the lack of direct evidence of Campine's participation in anticompetitive contacts during two periods of 11 months. Campine was fined €8.3 million.

Campine, which was the only company not applying for leniency, challenged the decision before the GC.

GC's judgment

The GC first recalled the standard of proof required to establish an infringement of EU competition rules. While the Commission must show the existence of an infringement by reference to precise and consistent evidence, it is sufficient if the body of evidence relied on, viewed as a whole, meets that requirement. Moreover, given the secretive nature of cartels, the Commission is entitled to infer the existence of an anti-competitive practice from coincidences and indicia. 

In this case, the Commission proved to the requisite legal standard the anti-competitive nature of each of the six collusive contacts in which Campine allegedly participated. In particular, the GC noted that mere receipt by an undertaking of price information, including pricing intentions, from a competitor is enough. Therefore, the Commission did not need to prove that Campine had replied to texts from its competitors or had taken any concrete follow-up action.

However, the GC found that the Commission erred in qualifying the infringement as 'single and continuous' insofar as it lacked evidence of Campine's participation in two long periods of 11 months. Notably, the Commission could not solely rely on the absence of public distancing to show that the conduct continued in circumstances where, over a significant period of time, several collusive meetings took place without Campine's participation. 

In the context of the functioning of the cartel at issue, the two 11-month intervals were long enough to constitute interruptions and for the infringement to be reclassified as 'single and repeated'. The GC observed in particular that these periods:

• significantly exceed the intervals separating the usual intervals between the tens of other collusive contacts involving the three other carter members; and
• add up to 22 months in total, which is significant when compared with the overall duration of the cartel (36 months).

Accordingly, the GC reduced Campine's fine to the extent that the Commission did not correctly assess the duration of the infringement factor when calculating the basic amount of the fine. It also applied a higher fine reduction for mitigating circumstances (8% instead of 5%) to reflect Campine's ancillary role and limited presence on the market. 

By contrast, the GC upheld the Commission's decision to depart from the fining guidelines and increase the fine by 10%. That departure was justified because using the value of purchases would have led to an underestimation of the economic importance of the infringement.

The judgment confirms that the Commission cannot presume that a conduct continued over time while there have been significant gaps between collusive contacts. That is an important principle limiting the duration of 'single and repeated' infringements and resulting fines. 

With thanks to Jessica Bracker and Sabina Pacifico of Ashurst for their contribution.