On December 3, 2020, the Paris Court of Appeals ruled in the Brenntag case that a company challenging its participation in a cartel cannot be held liable simply because other companies did not contest the alleged objections from the FCA. This judgment, issued in the context of a cartel case in the chemical distribution sector, constitutes a turnaround in the case law, although the Court of Appeals, ruling on the merits of the case, ultimately confirmed the fines imposed by the FCA.
In May 2013, following leniency applications, the FCA fined the four main distributors of chemical products in France—Brenntag, Caldic Est, Univar, and Solvadis, accounting for 80% of the sales in the sector—€79 million for artificially allocating customers and coordinating prices between 1997 and 2005 in several French regions (Burgundy, Rhône Alpes, and Northern and Western France). According to the FCA, these regional practices constituted a single, complex, and continuous infringement.
Three of the companies sanctioned by the FCA chose not to non-contest the FCA’s objections and received a fine reduction in return. Brenntag, however, challenged the existence of a single, complex and continuous infringement. The FCA argued that the other companies’ choice not to dispute its objections prevented Brenntag from challenging the classification of the infringement as single, complex, and continuous.
The FCA referred to the Manpower case law from the French Cour de cassation’s judgment of 2011. According to this decision, for horizontal cartels, the fact that some companies had waived their right to challenge the FCA’s objections was sufficient to enable the FCA to consider that the infringement in question was established with regard to all undertakings, even those that challenged the FCA’s objections. The FCA only needed to establish the participation of the non-settling companies in the infringement.
However, on December 3, 2020, the Paris Court of Appeals did not apply the Manpower case law, although it ultimately confirmed the fines imposed by the FCA.
The Paris Court of Appeals’ assessment
The Paris Court of Appeals relied on the principle of presumption of innocence and ruled that an undertaking cannot be held liable simply because other undertakings involved in a cartel chose not to contest the FCA’s objections. In light of this principle, undertakings which challenged the FCA’s objections must be able to defend themselves on the materiality of the facts alleged against them, even if these same facts constitute the basis for the objections that are not contested by other undertakings.
The Paris Court of Appeals thus accepted to assess the infringement at stake constituted a single, complex, and continuous infringement, as well as Brenntag’s participation in that infringement. Ultimately, the Paris Court of Appeals confirmed the FCA’s findings as to the existence of a single complex and continuous infringement due the similarity of products, undertakings, time periods, and practices concerned by the practices.
The Court of Appeals also confirmed Brenntag’s participation in the infringement.
The Paris Court of Appeals therefore essentially upheld the fines imposed by the FCA, i.e., €52 million in total for Brenntag and its former parent company Deutsche Bahn, instead of €53 million.
 Paris Court of Appeals, December 3, 2020, case no. 13/13058, Brenntag S.A. e.a.
 FCA, May 28, 2013, Decision no. 13-D-12 regarding practices implemented in the marketing of chemical commodities.
 French Cour de cassation, March 29, 2011, Judgment no. 10-12-913.
 Paris Court of Appeals, December 3, 2020, case no. 13/13058, para. 173.