On February 2, 2022, the General Court dismissed Scania’s trucks cartel appeal and essentially endorsed the Commission’s hybrid cartel procedure that bifurcates the Commission’s investigation into a settlement path with willing parties and an adversarial path with any hold outs.[1] The General Court was satisfied that the Commission examined all the facts and arguments that Scania (a non-settling party) brought before it afresh, and in particular, without relying on the facts or conclusions reached during the settlement procedure, which ensured a fair and impartial adversarial procedure.

Background

In November 2014, the Commission launched a formal investigation into six European truck manufacturers suspected of fixing prices for medium- and heavy-duty trucks.[2] In 2016, all truck manufacturers,[3] excluding Scania, agreed to settle with the Commission for a then-record total fine of around three billion euro.[4] While Scania initially entered into settlement discussions, but subsequently withdrew. As a result, the Commission pursued a so-called “hybrid” path:[5] settling the case with interested parties while reverting to an “adversarial” procedure with Scania. Since the introduction of the settlement procedure, hybrid cases have been rare—only 6 out of the 41 cartel cases in the past decade or so.

In September 2017, the Commission imposed a fine of around €880 million on Scania.[6] Scania’s appeal to the General Court did not focus on the merits of the Commission’s case,[7] but rather on the fact that Scania’s rights of defense and presumption of innocence were breached because Scania’s conduct was referenced in the settlement decision. This made the Commission biased such that it could not ensure impartiality in the subsequent adversarial proceedings.

The General Court’s judgment

The General Court had little sympathy for Scania’s challenge to the foundation of the hybrid settlement path. It found that pursuing a hybrid procedure does not, in itself, infringe the non-settling party’s presumption of innocence, the rights of the defense, or the duty of impartiality.[8]

Indeed, despite the adversarial nature of the investigation, Scania’s rights of defense had been respected “in a situation known as ‘tabula rasa’”: the Commission demonstrated that it examined all the facts and arguments brought before it afresh, and in particular, without relying on the facts or conclusions reached during the settlement procedure.[9] The fairness of the adversarial process is not called into question by the adoption of a settlement decision prior to the conclusion of the adversarial proceedings either, provided that the Commission respects the non-settling party’s rights of the defense, which was sufficiently demonstrated.

Implications

The judgment rubber stamps the Commission’s hybrid cartel procedure designed to incentivize all investigated companies to settle, while preserving the Commission’s ability to pivot to an adversarial path if there are a few hold outs. Scania could still appeal to the Court of Justice which, if anything, would further delay any follow-on claims against Scania that the settling truck manufacturers have meanwhile been battling in several European countries.

Editors: Conor Opdebeeck-Wilson and Thorsten Schiffer

[1] Scania and Others v. Commission (Case T-799/17), EU:T:2022:48 (“Scania v. Commission”).

[2] Commission Press Release IP/14/2002, “Antitrust: Commission sends statement of objections to suspected participants in trucks cartel,” November 20, 2014.

[3] DAF Trucks N.V, Daimler, Iveco, MAN and Volvo/Renault.

[4] Trucks (Case COMP/AT.39824), Commission settlement decision of July 19, 2016.

[5] Under a hybrid regime, the Commission applies two distinct procedures in parallel: (i) a settlement procedure for the entities that agreed to settle; and (ii) a standard procedure, governed by the general provisions of Commission Regulation (EC) No 773/2004 of April 7, 2004, for the non-settling entities.

[6] Trucks (Case COMP/AT.39824), Commission decision of September 27, 2017.

[7] Scania also claimed that the concept of a single and continuous infringement cannot encompass instances of conduct which do not constitute infringements in themselves. The General Court dismissed this argument, finding that establishing a single and continuous infringement does not necessarily require the enforcer to establish multiple infringements that each, in isolation, falls within Article 101 TFEU. Rather, it is sufficient to establish that the conduct (that took place at different levels and different moments in time) forms part of an “overall plan designed to achieve a single anti-competitive objective.” This is in line with recent case law (HSBC Holdings and Others v. Commission (Case T-105/17), EU:T:2019:675 (under appeal)).

[8] Scania v. Commission, para. 104.

[9] Ibid., paras. 129-165.