Exchange of confidential market information and business

Agreement / Area Acrylic / Fine / Judgement of the Tribunal (June 7)
The EU Court ruled, on June 7, the fines imposed in 2006 to Arkema and its subsidiaries and their parent companies successive Elf Aquitaine SA and Total SA, for their participation in a cartel in the acrylic lenses from January 1997 to September 2002 (Total and Elf Aquitaine, aff. T-206/06 and Arkema France and Others, Case. T-217/06).

Competitive practices consisted in particular the conclusion, implementation and monitoring of agreements on prices as well as the exchange of confidential market information and business.

Regarding the deduction to the parent companies of the unlawful conduct of their subsidiaries, the Court stated that the presumption that a subsidiary whose capital is 100% owned by its parent company does not independently determine its conduct on the market ‘s also applies when a parent company owns virtually the entire capital of its subsidiary.

The Court concludes that the Commission did not err in deciding to charge for Total and Elf Aquitaine the unlawful conduct of their subsidiaries.

Regarding the request to reduce the fine imposed on Arkema and its affiliates including the 200% increase for deterrence, the Court considers that the goal of deterrence can not be properly achieved only consider the situation of business day on which the penalty is imposed. Insofar as the economic unit that linked to Total Arkema has been broken before the date of adoption of the decision, the resources of the latter company could be taken into account in determining the increase of the fine imposed Arkema and its subsidiaries. The Tribunal has therefore reduced the fine imposed on them. (RD)