On 2 February 2022, the General Court (“GC”) dismissed in its entirety Scania’s action against a Commission decision sanctioning it for entering into collusive agreements with its competitors on the EEA market for trucks (case T-799/17).
The GC decision is interesting in that it provides clarifications regarding two controversial concepts of EU competition law, namely “hybrid settlements” and “single and continuous infringements”.
Hybrid procedure
During a hybrid procedure, the Commission carried out two distinct procedures in parallel, with respect to the same collusive conduct. In this case, the Commission initiated a settlement procedure with Daimler, DAF, Iveco, Volvo/Renault and MAN at the end of which these companies admitted to the collusive conduct in exchange for a reduced fine. In parallel, the Commission conducted an ordinary investigation against Scania, which had refused to be part of the settlement discussions. This led to a first Commission decision in July 2016 finding that Daimler, DAF, Iveco, Volvo/Renault and MAN took part in price-fixing cartel (“settlement decision”) followed by a second Commission decision adopted 14 months later, in September 2017, finding that Scania also took part in this cartel.
According to the EU case law, the Commission is entitled to adopt a settlement decision and, afterwards, a decision following the ordinary procedure, provided that it ensures observance of the presumption of innocence and of the principle of impartiality. According to Scania however, these principles had been breached by the Commission with respect to Scania in the settlement decision.
With respect to the principle of the presumption of innocence, the GC found that the fact that the Commission had decided, prior to the contested decision, that the conduct (to which Scania had allegedly also taken part) constituted an infringement of the EU Treaties had not violated Scania’s presumption of innocence. This is because, firstly, there were no elements in the text of the settlement decision hinting at Scania’s liability in the conduct. Secondly, the acknowledgement by the settling parties of their liability could not lead to the implicit acknowledgement of the liability of Scania. Finally, in the context of the ordinary procedure which followed the settlement decision, the Commission was required to review the file from the beginning (as if the settlement procedure had not taken place), in light of all the relevant circumstances, including all arguments put forward by Scania. Therefore, the Commission’s legal classification of the facts with regard to the settling parties did not necessarily presuppose that the same classification would be adopted with respect to Scania. In that context, there was nothing preventing the Commission from relying on the same evidence in both decisions.
With respect to the principle of impartiality, the GC considered that when the Commission examines, during the ordinary procedure, the evidence submitted by the non-settling parties, it is in no way bound by the factual findings and legal classifications of the settlement decision. In addition, as the Commission has wide discretion regarding whether to take investigative measures, its decision not to adopt additional investigative measures is not contrary to the principle of impartiality, unless it is demonstrated that the absence of such measures is due to bias.
Single and continuous infringement
As regards the concept of a “single and continuous infringement”, the GC dismissed the argument that the fact that the conduct had happened at different levels of the company’s hierarchy, without the necessary awareness of the Scania staff at lower level that they were involved in the continuation of practices that had taken place at top management level, could cast doubts over the legal qualification of the conduct as a “single and continuous infringement”. Indeed, the absence of awareness of certain employees was of no relevance to the finding that there was an overall plan designed to achieve a single anti-competitive objective. The GC found to the contrary that the awareness of the existence of such a plan is indeed assessed at the level of the undertakings involved and not at the level of their employees.
In addition, the existence of links between the different levels of collusive contacts was demonstrated by the Commission. In particular, the GC found that the Commission had rightly taken into account the identity of the participating undertakings, of the objectives and products concerned and of the nature of the information shared.
Please contact Pierre de Bandt or Jeroen Dewispelaere for further information about this case and/or for general legal advice relating to competition law.