Introduction
On 2 February 2022, the General Court of the European Union (‘General Court’) rendered its judgment in the Case T-799/17, Scania and Others v Commission (‘Judgment’). The Court dismissed in its entirety the appeal brought by Scania AB, Scania CV AB, and Scania Deutschland GmbH (‘Scania’), against the decision of the European Commission (‘Commission’) of 27 September 2017 in Case AT.39824 – Trucks (‘Scania Decision’), imposing a fine of EUR 880 million on Scania for its participation in the European Trucks Cartel (‘Truck Cartel’). The General Court confirmed Scania’s involvement in the single and continuous infringement and rejected all arguments presented by Scania.
Factual context and Judgment
Following an application for immunity by MAN in 2010, the Commission began to investigate anti-competitive agreements and practices in the trucks market. All truck manufacturers except for Scania participated in a settlement procedure during the investigation. In 2016, the Commission issued a settlement decision imposing a fine of €2.93 billion against MAN, DAF, Daimler, Iveco, and Volvo/Renault for their participation in the Truck Cartel (‘settlement decision’). The Commission continued its investigation into Scania and issued a separate decision imposing an administrative fine on Scania in 2017. Thus, the Commission went on the possible way of a hybrid procedure. Scania appealed the decision, arguing on various grounds, such as the breach of the presumption of innocence, the principle of impartiality, the violation of its right to defence, its liability, and the existence of a single and continuous infringement.
But the General Court dismissed Scania’s appeal in its entirety. First, the Court rejected Scania’s argument that the Commission had breached the presumption of innocence and the principle of impartiality during the hybrid procedure. The court reasoned that “(…) ‘hybrid’ procedures in the context of the application of Article 101 TFEU, […] do not in themselves, in all circumstances, entail an infringement of the presumption of innocence, the rights of the defence or the duty of impartiality and do not inevitably mean that those principles and those rights have been infringed […]” (para. 104). Moreover, in its settlement decision, the Commission never referred to Scania. It only stated that for “the avoidance of doubt, this Decision does not make any findings concerning this undertaking with respect to an infringement of EU competition law.”
Second, Scania argued that it did not participate in the single and continuous infringement of Article 101 TFEU. But the Court confirmed the Commission’s finding that Scania participated in the infringement and the Trucks cartel’s overall plan and knew of the collusive contacts between truck manufacturers.
Third, the Court confirmed the Commission’s finding that the structured discussions and exchanges of information on gross prices and their increases were “clearly prospective in nature” and that the collusive nature of the coordination of timing and the passing-on of the costs for the introduction of new emission technologies. The Court rejected the Commission’s argument that the exchanges on gross prices at the German level had no informative value for the prices applied in market transactions. The Court also confirmed the Commission’s finding on the impact of the price increases at the European level on prices at the national level. Although the “final price paid by customers may vary (for example, because of the application of different rebates at different levels of the distribution chain), all the prices applicable at each stage of the distribution chain derive directly (…) or indirectly (…) from the initial gross price” (para. 22).
Notably, the Court decided not to conceal certain information contrary to the Commission in its decision. Instead, the Court decided to make it public, as the Court considers it as “merely constituting legal classifications of the conduct of the settling parties and Scania” (para. 82). Equally, the concealment of that information “would affect the public’s understanding of the Court’s judgment.” In addition, the Judgment contains new information about the functioning of the cartel. For example, the concrete prices increase for new Euro-compliant engines (e.g., para. 283-284, compared to para. 140-141 of the Commission’s decision) or information related to the collusion on rebates (para. 356).
Comment
By its recent Judgment, the Court recognises the Commission’s practice of hybrid procedures in cartel cases, considering the defence rights of the interested parties. From the viewpoint of public enforcement, the Judgment provides more legal certainty to the practice, which might lead to more infringers choosing to settle with the Commission. In this case, Scania did not avoid a fine, but it was higher than if it had settled.
From the perspective of private enforcement, the Judgment further confirms factual circumstances and their legal classifications as already subject to many damage procedures against the Truck Cartel. First, the Judgment confirms the impact of the agreements and practices on gross list prices from the manufacturers’ headquarters on the end customer prices throughout the distribution chain. Equally, it confirms that the settlement decision and the Scania Decision “are based on the same facts and the same evidence” (para. 107).
Second, by siding with the Commission on the finding that Scania participated in a single and continuous infringement, the Court confirmed claimants’ position in ongoing antitrust litigations across Europe.
Therefore, on top of clarifying procedural aspects of hybrid procedures, the General Court confirmed key material aspects of the Truck Cartel case. They have impacted pending damage procedures given that the Court sided with the Commission and fully confirmed its findings. The Judgment contains other facts, notably on the top-down price-setting mechanism for trucks. The Court also noted that the single and continuous infringement must be assessed on the level of the undertakings and not at the level of employees. The facts of the infringement and their legal classification are the same, whether they were subject to the settlement decision of 2016 or the Scania Decision of 2017.
By Fabrice Van Boeckel, Juraj Siska, and Martin Seegers
