General Court grants reduction of fine in Spanish bitumen cartel

In 2007 the European Commission (“Commission”) imposed fines on participants of the bitumen cartel in Spain totaling EUR 183 Mio. The infringements involved the establishment of market quotas, allocation of sales for volumes and customers, monitoring of market sharing agreements by exchange of sensitive market information, mutual compensation for deviations from the market sharing agreements and price fixing. The Spanish subsidiaries of the Portuguese Galp Energia (“Galp Energía”) and Swedish Nynäs Petroleum (“Nynäs”) were members of the cartel and decided to appeal the Commission’s decision.

On 16 September 2013 the General Court decided in the cases T-482/07, Nynäs Petroleum und Nynas Petróleo vs Commission, and T-462/07 Galp Energia España and others vs Commission, that in one case, the Commission had erred in defining the infringement, and that in the other case the Commission had incorrectly assessed the degree of the company’s involvement.

Contrary to the original decision of the Commission, the General Court did not hold Galp Energía’s subsidiaries Galp Energia España S.A. and Petróleos de Portugal liable with respect to the monitoring system and the compensation mechanism. It stated that although they were aware of the existence of a compensation mechanism and that they could have foreseen the existence of the monitoring system, there is no proof for the participation in those two specific infringements. Thus, the General Court reduced the fines for Galp Energia España and Petróleos de Portugal from EUR 8.7 Mio to EUR 6.4 Mio and from EUR 8.3 Mio to EUR 6.2 Mio respectively.

Further on the General Court concluded regarding Nynäs’ appeal that the Commission erred by determining the gravity of its involvement in the cartel. Thus it granted an additional 2% reduction of the amount of the fine. Consequently, the fines for its subsidiaries Nynäs Petroleum and Nynas Petróleo were reduced from EUR 10.4 Mio to 10.2 Mio and from EUR 10.6 Mio to 10.4 Mio respectively.

Despite the reductions and contrary determinations to the Commission’s decision, the General Court categorized their actions as very serious infringements.

Authors:

Dr. Christina Hummer
Ori Kahn