On January 22, 2021, the Commission published the non-confidential version of its July 2020 settlement decision, fining three purchasers of ethylene[1] a total of €260 million for infringing Article 101 TFEU.[2] The case is only the second purchaser cartel sanctioned by the Commission under the 2006 Fining Guidelines, after its Car battery recycling decision.[3]

Background

The conduct at issue took place on the market for purchasing ethylene. To alleviate the risks from price volatility, ethylene supply agreements use a pricing formula, which often includes the industry benchmark as one of the pricing elements. This benchmark is set each month based on bilateral negotiations between ethylene purchasers and suppliers. The Commission found that the purchasers colluded in an attempt to lower this price benchmark, and by consequence the price they pay for ethylene. Specifically, the conduct consisted of two practices: (i) exchanging sensitive pricing-related information (e.g., oil and naphtha prices, level of ethylene supplies, etc.); and (ii) coordinating negotiations on an element of pricing vis-à-vis ethylene suppliers (e.g., price targets for benchmark negotiations, offers received by suppliers, etc.). The Commission found this conduct to constitute an infringement by object.[4]

Fine uplift for purchaser cartels and recidivism

In setting the fines, the Commission found that the value of sales—usually used as a starting point for the fine calculation—did not reflect the gravity and nature of the infringement, because the cartel concerned purchases and not sales. The Commission explained that “the more successful a sales cartel is, the higher the value of sales and thus the amount of the fine.”[5] The inverse is true for purchaser cartels: “[t]he more successful the cartel members were in reducing the purchase price, the lower the value of purchases on which the fine is calculated would be.”[6]

As a result, the Commission chose to depart from its Fining Guidelines[7] just as it had done in the previous Car battery recycling case and applied a 10% uplift to the basic amount of each party’s fine without specifying how it arrived at the 10% figure or suggesting that the purchasers had, in fact, been successful in depressing ethylene prices by 10%.

The Ethylene decision confirms the Commission’s practice to add a 10% uplift to the basic amount of the fines in purchaser cartels to avoid under- deterrence, first introduced in Car battery recycling.[8] This earlier Commission decision was upheld by the General Court in its Recylex and Campine judgments.[9] In these judgments, the General Court confirmed that the Commission did not need to establish that the cartel did in fact depress the value of purchases, since the conduct amounted to a by-object infringement, for which the Commission does not need to prove effects.[10] In other words, the mere aim of the cartel to reduce the purchase price was enough to support the uplift; there was no need for the Commission to further justify the uplift.

In Campine, the General Court deferred to the Commission’s broad discretion and did not require it to justify the exact level of the uplift either. Instead, the General Court satisfied itself with the explanation in the Car battery recycling decision that “the percentage of 10% is justified by the fact that this is the first time the Commission has imposed an increase in a case concerning a purchaser cartel.”[11] This suggests that the Commission will be under greater scrutiny to provide detailed reasoning justifying the level of the uplift in subsequent purchaser-cartel decisions. Yet the Ethylene decision provides little explanation as to why the level of the uplift was set at exactly 10%. This “mechanical application” of a 10% uplift will be litigated before the General Court as part of Clariant’s appeal against the decision.[12]

Ethylene is one of the rare instances in which a party settling with the Commission has appealed the resulting settlement decision. To date, Printeos is the only successful appeal against a settlement decision.[13] In its 2016 judgment, the General Court found that the fine imposed on Printeos was vitiated by the Commission’s failure to state adequate reasons. In 2018, the Commission re-adopted the decision and imposed the same fine on Printeos with a more substantiated reasoning. Printeos’ appeal concerned the Commission’s failure to comply with an essential procedural requirement, rather than challenging the Commission’s substantive findings. Clariant’s appeal against the Ethylene decision is on two issues that were discussed (and likely agreed) in the settlement process, which raises the question whether such an appeal is even appropriate under the settlement rules.

Clariant’s appeal also challenges the 50% uplift that the Commission applied to the basic amount of Clariant’s fine on account of its previous involvement in the Monochloroacetic acid cartel.[14] The Commission considered the Ethylene purchaser cartel “sufficiently similar” to the Monochloroacetic acid supplier cartel, because they both concern infringements of Article 101 TFEU.[15] Ethylene is thus the first Commission decision explicitly stating that purchaser cartels are considered “similar” to classic supplier cartels, at least for the purposes of assessing recidivism. This finding will be litigated before the General Court.

Implications

The Ethylene decision further cements the Commission’s approach to making the 10% uplift a standardised practice in purchaser cartel decisions. This transpires from the lack of any analysis in the decision as to whether the unlawful conduct had actually depressed the value of purchases and, if so, by how much. Clariant’s appeal presents an opportunity for the General Court to revisit its Recylex and Campine judgments and re-assess the Commission’s one-size-fits-all fine uplift for purchaser cartels.

[1]      The fourth participant escaped a fine on account of its successful immunity application.

[2]      Ethylene (Case COMP/AT.40410), Commission decision of July 14, 2020.

[3]      Car battery recycling (Case COMP/AT.40018), Commission decision of February 8, 2017.

[4]      Ethylene, para. 71.

[5]      Ethylene, para. 142.

[6]      Ethylene, para. 143.

[7]      Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No. 1/2003, OJ 2006 C 210/2, para. 37.

[8]      Car battery recycling, para. 364.

[9]      Recylex v. Commission, (Case T-222/17), EU:T:2019:356, as reported in our May 2019 EU Competition Law Newsletter; see also, Campine and Campine Recycling v. Commission, (Case T-240/17) EU:T:2019:778, as reported in our November 2019 EU Competition Law Newsletter.

[10]    Recylex, para. 127; Campine, para. 345.

[11]    Campine, para. 347.

[12]    Action brought on September 25, 2020, Clariant and Clariant International v. Commission (Case T-590/20), OJ 2020 C 399/42.

[13]    See, Printeos and Others v. Commission (Case T-95/15) EU:T:2016:722, where the General Court found that the Commission failed to state adequate reasons (as Clariant argues in the Ethylene appeal) and annulled the fine. Another such appeal was lodged and later withdrawn by Société Générale against Euro Interest Rate Derivatives (Case COMP/AT.39914), Commission decision of February 7, 2016. Société Générale withdrew its appeal following the Commission’s adoption of an amendment decision unilaterally reducing Société Générale’s fine.

[14]    Clariant was indirectly involved in the Monochloroacetic acid cartel (i.e., as a parent company of one of the direct participants in the infringement). The infringement was a supplier cartel consisting of two practices: (i) the exchange of pricing information; and (ii) the allocation of volumes and customers. See, MCAA (Case COMP/AT.37773), Commission decision of January 19, 2005, paras. 84–92.

[15]    Ethylene, para. 138, third bullet point. This approach seems consistent with the General Court’s 2007 judgment in BASF AG and UCB SA v. Commission

(Joined Cases T-101/05 and T-111/05) EU:T:2007:380, para. 64.