On May 8, 2019, the General Court held that cartel participants that do not appeal a Commission infringement decision cannot seek reimbursement of fines paid where that decision is annulled in proceedings to which they were not a party.[1]

On September 30, 2009, Lucchini, together with seven others, was fined €14.35 million for participating in a cartel in the reinforcing bar sector.[2] Lucchini’s appeal to the General Court was dismissed in its entirety.[3] Unlike other participants, Lucchini did not appeal the General Court’s judgment to the Court of Justice.[4] In 2017, the Court of Justice annulled the fines imposed on the appealing participants.[5] Lucchini attempted to have the Commission reexamine its case in light of these judgments—asking first for a reimbursement of the fine paid and second, for admission to the infringement procedure reopened by the Commission for the four successful appellants. The Commission, however, refused. Lucchini lodged an action before the General Court to annul the Commission’s rejection letters or, alternatively, seek compensation from the Commission on the basis of non-contractual liability.

The General Court dismissed both of Lucchini’s actions. The General Court recalled, first, that an infringement decision concerning several participants—though adopted pursuant to a common procedure—consists of several individual decisions. If an appellant seeks annulment, the resulting judgment relates only to the elements of the decision that concern that specific appellant. Such judgment cannot result in the annulment of an individual decision that was not so challenged. Lucchini had not appealed the General Court’s judgment. Accordingly, the General Court’s judgment—and with it the infringement decision— had become final against Lucchini. Lucchini could not, therefore, benefit from the Court of Justice’s upholding the other participants’ appeals. Second, the General Court rejected Lucchini’s claim for compensation as time-barred because the alleged harm—the payment of the fine—occurred more than five years prior.

The General Court’s judgment reaffirms that addressees that do not appeal an infringement decision cannot “free ride” on other participants’ successful appeals—they must mount challenges themselves. When considering whether to challenge an infringement decision, companies should be mindful of either planning to exhaust all avenues of appeal or not mounting a challenge at all.

[1]      Lucchini v. Commission (Case T-185/18), EU:T:2019:298.

[2]      Reinforcing bars, readoption (Case COMP/37.956), Commission decision of September 30, 2009.

[3]      Lucchini v. Commission (Case T-91/10), EU:T:2014:1033.

[4]      Feralpi v. Commission (Case T70/10), EU:T:2014:1031; Ferriera Valsabbia and Valsabbia Investimenti v. Commission (Case T92/10), EU:T:2014:1032; Riva Fire v. Commission (Case T83/10), EU:T:2014:1034; Ferriere Nord v. Commission (Case T90/10), EU:T:2014:1035; and Alfa Acciai v. Commission (Case T85/10), EU:T:2014:1037.

[5]      Feralpi v. Commission (Case C-85/15 P), EU:C:2017:709; Riva Fire v. Commission (Case C-89/15 P), EU:C:2017:713; Ferriere Nord v. Commission (Case C-88/15 P), EU:C:2017:716; and Ferriera Valsabbia e.a v. Commission (Joined Cases C-86/15 P and C-87/15 P), EU:C:2017:717.