On November 28, 2019, the Court of Justice partially granted the appeal brought by ABB and annulled a part of the Commission’s Power Cables decision.[1] In particular, the Court of Justice upheld ABB’s argument that the Commission did not adduce sufficient evidence that the cartel extended to accessories for power cables with voltages between 110 kV and 220 kV. The Court of Justice criticized the General Court for using a wrong evidentiary standard in reviewing the Commission’s decision.
ABB argued that the Commission had not provided any evidence to support its finding that the infringement covered accessories of power cables with voltages below 220 kV but had instead drawn an inference from the fact that such accessories were included in the power cables projects tainted by the cartel.[2]
The Court of Justice agreed that the Commission should not be permitted to dismiss its evidentiary burden when establishing an infringement. In particular, it noted that “it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement.”[3] The Court of Justice criticized the General Court for “effectively rel[ying] on an unsubstantiated presumption in that regard, while leaving it to the appellants to rebut that presumption in respect of those accessories.”[4]
Other than ABB, no other addressee of the Power Cables decision has challenged the scope of the infringement found by the Commission. They are therefore unlikely to benefit from this judgment.
The Court of Justice’s judgment in ABB v. Commission may encourage defendants in the Commission’s cartel investigations to question the scope of the alleged infringement. This includes immunity applicants, for which the scope of a decision may have implications for the follow-on damages litigation.
[1] ABB Ltd and ABB AB v. Commission (Case C-593/18 P) EU:C:2019:1027.
[2] ABB Ltd and ABB AB v. Commission (Case C-593/18 P) EU:C:2019:1027, para. 39 and ABB Ltd and ABB AB v. Commission (Case T-445/14) EU:T:2018:449, para. 492.
[3] ABB Ltd and ABB AB v. Commission (Case C-593/18 P) EU:C:2019:1027, para. 38.
[4] Ibid., para. 44.