Clariant AG and Clariant International AG v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2023:650
• Date: 18 October 2023
• Docket Number: T-590/20
• Celex Number: 62020TJ0590
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)

18 October 2023 ( *1 )

(Competition – Agreements, decisions and concerted practices – Ethylene market – Decision finding an infringement of Article 101 TFEU – Coordination on a purchase price element – Settlement procedure – Fine – Adjustment of the basic amount of the fine – Point 37 of the Guidelines on the method of setting fines – Repeat infringement – Point 28 of the Guidelines on the method of setting fines – Unlimited jurisdiction – Counterclaim for increase of the amount of the fine)

In Case T‑590/20,

Clariant AG, established in Muttenz (Switzerland),

Clariant International AG, established in Muttenz,

represented by F. Montag and M. Dreher, lawyers,

applicants,

v

European Commission, represented by A. Boitos, I. Rogalski and J. Szczodrowski, acting as Agents,

defendant,

THE GENERAL COURT (Third Chamber, Extended Composition),

composed, at the time of the deliberations, of M. van der Woude, President, G. De Baere (Rapporteur), G. Steinfatt, K. Kecsmár and S. Kingston, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

further to the hearing on 24 November 2022,

gives the following

Judgment

1 By their action under Article 263 TFEU, the applicants, Clariant AG and its subsidiary, Clariant International AG, seek, by way of principal claim, the partial annulment of Commission Decision C(2020) 4817 final, of 14 July 2020, relating to a proceeding under Article 101 TFEU (AT.40410 – Ethylene) (‘the contested decision’) and, in the alternative, a reduction of the amount of the fine imposed on them ‘jointly and severally’ in that decision. The European Commission seeks, by way of counterclaim, an increase of the amount of that fine.

I. Background to the dispute

A. Administrative procedure

2 On 29 June 2016, one of the four undertakings that had participated in collusive contacts relating to purchases of ethylene applied for immunity from fines under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’).

3 Between 23 May and 3 July 2017, the three other undertakings that had participated in those collusive contacts also applied for immunity from fines or, in the alternative, for a reduction in the fine that had been imposed on them pursuant to the Leniency Notice.

4 On 10 July 2018, the Commission initiated proceedings pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) against the four undertakings against whom the proceedings were directed (‘the cartel participants’), with a view to engaging in settlement negotiations with them in accordance with the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Articles 7 and 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1) (‘the settlement notice’).

5 By letter of 23 July 2018, the applicants confirmed to the Commission that they were willing to engage in settlement negotiations.

6 In the course of those exchanges, the Commission informed the applicants of the objections it envisaged raising against them and disclosed to them the key evidence in its file that formed the basis for those objections. It also provided them with an estimation of the range of fines it was likely to impose on them.

7 On 20 November 2019, the applicants introduced their settlement submission pursuant to the third paragraph of Article 10a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), by which they acknowledged their ‘joint and several liability’ for their participation in the infringement. They also indicated the maximum fine they would accept in the settlement procedure, namely an amount of EUR 159663000.

8 On 7 February 2020, the Commission adopted a statement of objections. The applicants replied to the statement of objections on 24 February 2020, confirming that it reflected their settlement submission and that they remained committed to following the settlement procedure.

B. Contested decision

9 On 14 July 2020, the Commission adopted the contested decision.

1. Description of the infringement

10 The Commission found that the applicants had participated in a single and continuous infringement consisting in exchanging sensitive commercial and pricing-related information and in fixing a price element relating to purchases of ethylene, in Belgium, Germany, France and the Netherlands during the period from 26 December 2011 to 29 March 2017 (Article 1(c) of the contested decision).

11 The infringing conduct concerned the purchase of ethylene on the merchant market, not including ethylene produced for captive purposes, that is to say, ethylene produced and used by the producers themselves.

12 The ethylene was generally sourced on the basis of long-term supply agreements. In order to reflect the risk of volatility in the purchase prices of ethylene, such supply agreements often referred to the ethylene Monthly Contract Price (the ‘MCP’). In order to establish the ethylene MCP for the month to come, two separate but identical bilateral agreements, also called ‘settlements’, had to be reached between two different pairs of suppliers and buyers. Once the first settlement had been reached, the parties could notify their agreement to a private and independent reporting agency, which published that first settlement to the market. As soon as another supplier-buyer pair had settled at the same price, that price was published by the reporting agencies as the MCP for the month to come.

13 The Commission emphasised that the MCP was not a net price but one variable element in the pricing formulae used for certain supply contracts. The MCP thus directly influenced the actual ethylene purchase price paid under those supply agreements, as well as in certain transactions on the ethylene spot market.

14 The Commission found that the cartel participants had coordinated their market behaviour through bilateral contacts relating to the MCP, by agreeing, first, the price targets they were to use when commencing MCP negotiations with ethylene sellers, as well as, second, the final MCPs they wanted to achieve, which were based on a joint evaluation of market pricing factors and publicly available analyst intelligence. Those participants also colluded on their future positions in negotiations with ethylene sellers. Lastly, they exchanged information on market trends.

15 The objective of that conduct was to influence MCP negotiations in order to obtain the lowest possible purchase price in their negotiations with ethylene sellers.

16 The Commission found that the conduct at issue presented the characteristics of an agreement or a concerted practice within the meaning of Article 101 TFEU having as its object the restriction of competition on the ethylene purchasing market. It was thus unnecessary to consider the effects of that conduct on that market, or to determine whether the cartel participants had ultimately succeeded in reaching the desired MCP.

17 As regards the applicants’ participation in the infringement, the Commission observed, first, that the second applicant, Clariant International, had accepted unreservedly its liability for its direct participation in the infringement committed in the period from 26 December 2011 to 29 March 2017 and, second, that the first applicant, Clariant, had accepted unreservedly its ‘joint and several liability’ for its wholly owned subsidiary’s participation in the infringement committed in the period from 26 December 2011 to 29 March 2017. It accordingly found that there was ‘joint and several liability’ for the second applicant for its direct participation and for the first applicant, in its capacity as parent company of the second applicant, in the infringement for the material period.

2. Calculation of the amount of the fine imposed on the applicants

18 The Commission imposed on the applicants, ‘jointly and severally’, a fine in the amount of EUR 155769000 (Article 2(c) of the contested decision).

19 First, for the purposes of calculating the basic amount of the fine, the Commission used the figures for the value of purchases of ethylene acquired in the period covering the last full year of the applicants’ participation in the infringement, which was 2016.

20 The Commission took the view that it would not be appropriate to use the value of sales of downstream products as the starting point for calculating the basic amount of the fine, given that the infringement concerned a purchase cartel and that not all the parties were present on the same downstream market(s).

21 Furthermore, the Commission considered it appropriate to include only the value of purchases made under ethylene supply agreements using an MCP-based pricing formula, and that of purchases made on the ethylene spot market based on the MCP.

22 Second, for the determination of the basic amount of the fine, the Commission took account of the gravity and duration of the infringement, as well as the need for deterrence.

23 First of all, having regard to the fact that the infringement consisted in horizontal price-fixing...