On October 8, 2020, Advocate General Hogan delivered his opinion to the Court of Justice in which he argued the General Court had breached the principle of equal treatment in recalculating the fine imposed in 2014 by the Commission on Italian steel abrasives producer Pometon SpA (“Pometon”). Pometon was fined for participating in an alleged cartel by engaging in price coordination.[1] The Advocate General recommended that the Court of Justice should reduce the fine from €3.9 to €2.6 million.

Pometon was one of five steel producers fined by the Commission[2] for allegedly agreeing on a surcharge on the sale of steel abrasives.[3] Pometon, the only non-settling party, appealed the Commission’s decision to the General Court, arguing that the Commission violated the presumption of innocence and Pometon’s rights of defense by referring to Pometon’s behavior in the 2014 settlement decision. The General Court dismissed this ground of appeal, noting that the Commission used sufficient precautions in its drafting to avoid prejudging Pometon’s liability. The General Court, however, concluded that the Commission failed to evidence to the requisite legal standard the calculation of Pometon’s fine and therefore reduced it based on its own assessment from €6.2 million to €3.9 million.[4]

In his opinion, the Advocate General first argued that the General Court wrongly considered that the Commission had not breached its duty of impartiality towards Pometon and the company’s presumption of innocence, as the decision was “worded in such a way as to raise doubts” as to Pometon’s guilt.[5] The Advocate General concluded, however, that this error of law in the settlement decision did not affect the validity of the appealed decision, the findings of which were duly supported by evidence.[6] The Advocate General therefore called upon the Court of Justice to dismiss the three first pleas, all of which related to Pometon’s presumption of innocence.

The Advocate General then argued that the fourth plea should be upheld, insofar as the General Court breached the principle of equal treatment by according “disproportionate attention” to the criterion of the size of the undertaking in the assessment of the reduction of the fine on account of mitigating circumstances.[7] In this case, Pometon’s role in the infringement was less than other participants but nevertheless led to a similar fine due to its larger turnover.[8] The Advocate General said the General Court “created a form of discrimination” between the companies by “inconsistently applying its own method of calculation.”[9]

This case will be a new opportunity for the Court of Justice to clarify the scope of the rights of defense of non-settling parties in hybrid settlement cases.[10] In 2019, the Court of Justice confirmed the General Court’s judgment in ICAP v. Commission, which confirmed settlement discussions should not influence the outcome of the Commission’s investigation of non-settling parties.[11] Should the Court of Justice follow the Advocate General’s opinion, this will confirm that non-settling cartel participants must be treated equally with settling participants in the determination of their fine, even if they are not part of the same proceedings.

[1]      Pometon SpA v. European Commission (C-440/19 P), Opinion of Advocate General Hogan of 8 October 2020, EU:C:2020:816 (the “Opinion”). For reporting on the 2016 Commission decision, see, Cleary Gottlieb’s European Competition Quarterly Report Q4 2016.

[2]      Steel Abrasives (Case COMP/AT.39792), Commission decision of May 25, 2016. The Commission fined Winoa, MTS and Wurth a combined sum of €30.7 million in 2014. Another company, Ervin, escaped penalties by filing for leniency and revealing the practices. See, Steel Abrasives (Case COMP/AT.39792), Commission decision of April 2, 2014.

[3]      Steel abrasives are loose particles produced from steel scrap residue. They are mainly used to clean or enhance metal surfaces in the steel, automotive, metallurgy and petrochemicals industries. They are also used for cutting hard stones, such as granite and marble.

[4]      Pometon SA v. Commission (Case T-433/16) EU:T:2019:201.

[5]      Opinion, para. 74.

[6]      Opinion, para. 101.

[7]      Opinion, para. 120.

[8]      Opinion, paras. 121–122.

[9]      Opinion, para. 123.

[10]    According to our analysis of public data, approximately 18% of settlements are hybrid cases (with the number of “hold-outs” ranging from 1 to 3).

[11]    ICAP v. Commission (Case T-180/15) EU:T:2017:795. In this judgment, the General Court considered that the presumption of innocence was not preserved as the Commission specified in its settlement decision how ICAP “facilitated” the infringements.