ECJ defines limit of fines

On 19 September 2007 the European Commission (“Commission”) imposed a fine of more than EUR 300 Mio on seven companies for the involvement in anticompetitive agreements concerning zip and other fasteners.

The largest fine, with a total of almost EUR 150 Mio, was imposed on the YKK Group (“YKK”) for its involvement in the illegal agreements. YKK consists of the YKK Corporation (“YKK Corp”), YKK Holding Europe BV (“YKK Holding”) and YKK Stocko Fasteners GmbH (“YKK Stocko”). YKK Holding acquired 76% of the shares of YKK Stocko in 1995. The remaining shares were bought in 1997.

The Commission proved YKK’s involvement in (i) price agreements regarding other fasteners with William Prym GmbH & Co KG und Prym Inovan GmbH & Co KG („Prym“), Scovill Fasteners Eurpe SA und Scovill Fasteners Inc („Scovill“), A. Raymond Sarl („Raymond“) , Berning & Söhne GmbH („B&S“) and the German association of fastening technology (“VBT”) between 1991 and 2001, (ii) the allocation of markets and customers with Prym from 1999 to 2003 and (iii) price agreements regarding zip fasteners with Coats and Prym in 1998 to 1999.

Accordingly, the Commission had imposed three different fines on YKK. For price agreements regarding other fasteners it imposed a fine of EUR 68 Mio against YKK Stocko, of which EUR 49 Mio were jointly and severally with YKK Holding and YKK Corp, since YKK Stocko was only integrated into the YKK Group after 1995. Regarding the price-fixing and market allocation with Prym the Commission imposed a joint and several fine of EUR 19.5 Mio and another joint and several fine on YKK Corp and YKK Holding amounting to EUR 62.5 Mio concerning the agreements established with Prym and Coats for zip fasteners. Moreover, the Court confirmed the decision of the Commission in its case T-448/07, YKK vs Commission on 27 June 2012.

However, the European Court of Justice (“ECJ”) annulled parts of the Court’s decision on 04 September 2014 in case C-408/12P, YKK vs Commission, in which it interpreted and specified the application of the 10% limit of the total turnover in the preceding business year for fines from the Commission according to Art. 23 of Regulation No 1/2003.

The ECJ found that the Commission had split correctly the fine of EUR 68 Mio for the infringement between 1991 and 2001 between the two different economic units, but erred in applying the 10% limit in calculating the part of the fine for which YKK Stocko was held solely liable. The error consisted of taking the total turnover of YKK, instead of YKK Stocko for its calculation. The ECJ stated that the amount of a fine regarding solely a subsidiary prior to its acquisition must be calculated based on the turnover just of that subsidiary and not from the latter economic unit. Thus, the part of the fine for which YKK Stocko was solely liable was reduced from EUR 19 Mio to EUR 2.8 Mio.

Authors:

Dr. Christina Hummer
Ori Kahn