Cartels

On October 18, 2023, the French Cour de cassation upheld the Paris Court of Appeals’ ruling finding that the French Competition Authority (“FCA”) had rightly calculated the amount of the fine imposed on L’Oréal in 2014 for its alleged involvement in a cartel in the personal care products industry.[1] The French Cour de cassation confirmed that the sales of a subsidiary that did not itself participate in the infringement can be included in the calculation of the fine if these sales have been affected by the infringement sanctioned.

On October 18, 2023, the General Court delivered its judgment in Clariant v. Commission.[1]  It upheld the Commission’s settlement decision in the Ethylene case,[2] following an appeal by Clariant, who argued that the Commission erred in: (i) applying a 50% recidivism multiplier to Clariant in circumstances where the previous infringement in which it had participated was not a purchasing cartel, but rather a sales cartel; and (ii) applying a 10% fine increase (to all participants) on account of the infringement being a purchasing cartel, to ensure adequate deterrence.  The General Court also rejected a counterclaim lodged by the Commission, in which the Commission sought to increase the fine imposed on Clariant by removing its 10% settlement discount, on the basis that Clariant had accepted to be fined in the context of settlement proceedings.

On October 5, 2023, Advocate General Rantos delivered his opinion on two questions referred to the Court of Justice by the Portuguese Competition, Regulation and Supervision Court (the “referring court”).[1]  The referring court seeks clarification on whether a ‘standalone’[2] exchange of information between competitors can be classified as a restriction by object under Article 101 TFEU, and whether that classification is permitted where it has not been possible to establish any uncertain or procompetitive effect on competition resulting from the exchange.  The case gives the Court of Justice an opportunity to clarify its recent evolution from a broad and formalistic interpretation of the concept of a restriction by object to a narrower, more  pragmatic interpretation of that concept.[3]

In a decision dated September 26, 2023, the French Competition Authority (“FCA”) imposed a €750,000 penalty on the French tobacco shops trade union, the Confédération Nationale des Buralistes de France (“CNBF”),for boycotting practices (the “Decision”).[1]  The FCA found that the trade union had sought to exclude rivals from the distribution of gambling games issued by La Française des Jeux (“FDJ”), the state-owned company responsible for operating the national lottery in France.

Summary

On September 7, 2023, the French Competition Authority (“FCA”) imposed fines totaling €31.2 million on five companies active in the nuclear dismantling sector for colluding on tenders organized by the French Commission for Atomic Energy and Alternative Energies (Commissariat à l’Energie Atomique et aux Energies Alternatives, “CEA”) at a nuclear site in Marcoule, in the South of France.[1]

On 31 July 2023, the Competition and Markets Authority (CMA) issued an infringement decision finding that Leicester City Football Club and JD Sports had colluded to restrict competition in the sales of Leicester City-branded clothing, including replica kit, in the UK.  Leicester City FC and its parent companies reached a settlement agreement with the CMA, under which they will pay a fine of £880,000.  JD Sports had reported the infringement to the CMA, in exchange for immunity from financial penalties.

In a ruling dated June 28, 2023, the Cour de cassation[1] upheld the Paris Court of Appeals’ judgment which had reversed the 2010 decision of the French Competition Authority fining 11 banks for an anticompetitive pricing agreement in relation to check processing.  The Cour de cassation ruled that the FCA had improperly qualified the agreement as a “by object” infringement when no sufficient degree of harmfulness to competition was proven.  This ruling puts an end to a 13-year old judicial saga.

On 25 May 2023, the High Court ordered that an individual disqualified by the Competition and Markets Authority (CMA) may continue as the director of Cantillon, a construction company fined £1.92 million for its involvement in a bid-rigging cartel.[1]  The High Court’s Order—which was opposed by the CMA—is the fourth time since 2019 that the Court has granted an exemption from a director disqualification undertaking obtained by the CMA.

The CMA has published its Annual Report on the UK’s concurrency arrangements, which came into effect in their current form in 2014.  Eight sectoral regulators have competition law powers in the UK, in addition to the CMA as the primary competition authority.[1]