13 juin 2011

Offering shares at stock exchange is a method to reduce an anti-competition fine from € 219 to 113 million

Arkema SA (France) got a substantial reduction of the fine for participation in a cartel at the methacrylates market for 5 years and 7 months: from € 219 131 250 to 113 343 750 (judgment T-217/06). The most exciting is the legal method of the reduction.

One of the criteria for determining the amount of the fine is the turnover of the enterprise. Elf Aquitaine SA controlled from 97,6 to 96,48 % of Arkema SA shares, and 99,43 % of Elf Aquitaine shares were owned by Total SA (§ 2). While calculating the fine, the Commission took into account the turnover of the Total group, and not that of Arkema alone.

However 11 working days before imposition of the fine by the Commission the Arkema shares were put at stock exchange (§ 240). Thus, according to the EU General Court, the economic unity of Arkema and Total broke, and the turnover of Total could not be used in the calculation of the fine (§ 272).

Case Degussa v Commission, T 279/02, §§ 289 and 290, where it was decided that the turnover at the infringement moment must be taken into account, was declared inapplicable, since, contrary to that case, in Arkema case the European Commission didn’t mention that the Deguissa style application would be necessary having regard to the fact that Total was better placed than Arkema to evaluate the dangers of the anticompetitive behavior.

Thus, the judges conclude, the European Commission's fine was stronger than what was required by the sufficient deterrent effect principle.

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