Moo la la! Paris Court reduces fines imposed on French dairy cartelist

The Court upheld the FCA's infringement decision of 11 March 2015. However, it departed from the FCA's decision on two main areas. 

First, the FCA's economic service had conducted a new assessment of the overcharge resulting from the infringing cartel conduct.  However, this assessment was not disclosed to the parties until during the oral hearing stage of the FCA's infringement proceedings, and without providing the parties with the opportunity to make representations at the hearing.  After the hearing, the FCA communicated a summary of the assessment to the parties, but it provided them with a very short period of time to challenge it.  The Court considered that the FCA violated the parties' rights of defence and annulled the fines (albeit substituting those fines with its own penalties).

Second, the Court reduced by c.32% the total fines imposed on further grounds including the following:

• It decreased the level of uplift the FCA attributed to the gravity of the infringement from 16% to 15%, reflecting lower barriers to entry and higher levels of distributor buyer power than those concluded by the FCA.
• It granted a 15% reduction to one cartelist for having competed with the cartel during the relevant period (i.e. it had not fully adhered to the cartel). The Court also granted a 20% reduction to two defendants for their minor involvement in the cartel.
• Lastly, the Court granted a higher reduction to three defendants in light of their inability to pay.

This judgment represents one of the highest fine reductions granted by the Court since the FCA applied its 2011 guidance on the calculation of fines.

With thanks to Julie Tirtiaux of Ashurst for her contribution.