ECJ confirms Court in industrial bags decisions

I. Introduction

On 30 November 2005 the European Commission (“Commission”) imposed fines for an amount of EUR 291 Mio. on sixteen companies involved in the industrial bags cartel. Trioplast Wittenheim SA (“Trioplast Wittenheim”) and its parents companies were fined and prosecuted for their involvement in anticompetitive agreements regarding industrial bags in Belgium, Germany, Spain, France, Luxembourg and the Netherlands between 1990 and 1999. The agreements aimed at price fixing, pricing methods, allocation of markets, quotes and customers, bid-rigging and the exchange of information.

II. Fines imposed on Trioplast Wittenheim’s economic unit

FLS Plast A/S (“FLS Plast”), a subsidiary of FLSmidth & CO A/S (“FlSmidth”), bought 60% of the shares of Trioplast Wittenheim between December 1990 and December 1991. Then it acquired the rest of the shares, ultimately owning Trioplast Wittenheim to 100%.

On 1 January 1999 Trioplast Wittenheim was bought by Trioplanex France SA (“Trioplanex France”), a subsidiary of Trioplast Industrier AB (“Trioplast Industrier”).

The fine imposed on Trioplast Wittenheim by the Commission amounted to EUR 17.85 Mio. Thereof Trioplast Industrier, the latter parent company of the economic unit with Trioplast Wittenheim, had received a leniency reduction of 30 % of the fine for its cooperation during the investigation with the Commission.

Hence, FLSmidth and FLS Plast were imposed jointly and severally a fine of EUR 15.30 Mio., and Trioplast Industrier for EUR 7.73 Mio., jointly and severally with Trioplast Wittenheim.

III. ECJ and the Court regarding joint and several liability

FLS Plast claimed that the Court had erred in the calculation of the fine and identification of the economic unit. The Court stated on 6 March 2012 in its case T-64/06, FLS Plast v. European Commission that the Commission had not proven sufficiently, that FLS Plast had exercised a decisive influence on Trioplast Wittenheim throughout the year 1991. As it only held 100 % of the shares since December 1991, the Commission had erred in assuming that FLS Plast had such an influence and be held jointly and severally liable for that year. Consequently, the Court reduced FLS Plast’s fine to EUR 14.45 Mio. The European Court of Justice (“ECJ”) confirmed the Court’s decision in its case C-234/12 P, FLS Plast v. European Commission. It confirmed that the Commission had assumed the exercise of decisive influence from FLS Plast on Trioplast Wittenheim correctly for the years 1992 to 1998.

IV. ECJ on leniency programs

FLS Plast argued furthermore that the reduction of 30 % of the fine for the latter parent company should be extended to its benefit. However, the ECJ reaffirmed that reductions regulated by the leniency Notice cannot be extended to companies who were not directly involved in the cooperation with the Commission, even if being held jointly and severally liable with the same subsidiary.


Dr. Christina Hummer
Ori Kahn