General Court dismisses Faci's appeal in heat stabilizers cartel

On 20 March 2013, the General Court ("GC") handed down its judgment in Case T-46/10 Faci v Commission concerning an appeal in the heat stabilizers cartel. This judgment comes a little over one month after the three judgments that were handed down by the GC on 6 February 2014, relating to the same cartel. In its judgment, the GC dismissed Faci's appeal in its entirety.

In its decision the Commission stated that Faci was liable for an infringement that consisted of the exchange of commercially sensitive information and the fixing of prices and allocation of markets and customers. Contrary to the applicants in the previous three judgments, Faci admitted that it had participated in a cartel from 6 November 1996 until 26 September 2000. However, in its appeal Faci argued, among other things, that it only exchanged commercially sensitive information.

The GC dismissed Faci's arguments by ruling that the Commission had provided sufficient evidence that the cartel, during the period of Faci's involvement, not only exchanged information but also fixed prices and allocated customers and markets.

In line with established case law, the GC noted that the Commission did not need to provide evidence for each specific meeting. It continued by stating that even if the Commission did not adduce specific evidence for meetings that were attended by Faci, the Commission could still infer the anticompetitive nature of the meetings on the basis of previous anticompetitive meetings.

The GC furthermore emphasized the importance of distancing from the cartel. Without distancing itself the undertaking will in principle retain full responsibility for its participation in the cartel. Mitigating circumstances such as the non-implementation of a cartel will only be taken into account if the undertaking concerned is able to show that it clearly and substantially opposed the implementation of the cartel. The GC held that Faci neither distanced itself from the cartel nor had provided the Court with the necessary evidence.