The judgment shows that EU Courts will take a strict approach in cases where there is a risk of unequal treatment. The fact that the methodology applied to NEX was raised with NEX during the administrative procedure and during the proceedings before the GC is irrelevant. In such circumstances, the ECJ confirmed that general references in the decision to gravity, duration and nature of the infringement as well as to the deterrent effect of fines constituted insufficient reasoning as regards the methodology used. Martin) and the Commission claimed that it had applied the same five step methodology to calculate their respective fines. In the present case, there were two facilitators (NEX and R.P. In that respect, the ECJ confirmed that the circumstances of this case differ from those in the heat stabilisers cartel case, in which the Commission set the basic amount of the fine imposed on the sole facilitator of the cartel as a lump sum. The question of whether a mere reference to those factors suffices depends on the particular circumstances of each case. Although it is not required to provide the figures relating to the method of calculation, it must nonetheless explain the weighting and assessment of the factors taken into account. The Commission fulfils its duty to state reasons if the decision sets out the factors which enabled it to determine the gravity and duration of the infringement. It notably recalled that the Commission has to provide a fuller account of its reasoning in novel cases and that any departure from the standard method should comply with the principle of equal treatment. It then turned to determining the scope of the Commission's obligation to state reason when it departs from the general methodology in an individual case. where an undertaking which facilitated an agreement does not generate any turnover in the relevant product markets). The ECJ's rulingĪfter recalling that the Commission's broad discretion in calculating fines is limited by the 2006 Fining Guidelines, the ECJ confirmed that the methodology defined therein may be unsuited to certain cases (e.g. The Commission challenged that judgment before the ECJ in so far as it annulled the fines imposed on NEX. The GC did, however, annul certain parts of the Commission's decision on other grounds, including insufficient reasoning in relation to the method used for setting the fine. In particular, it held that the presumption of innocence had not been respected, since the Commission took a position in the 2013 settlement decision (to which NEX was not a party) as to the broker's liability, but that did not justify the annulment of the 2015 decision. While it confirmed the Commission's finding that NEX had acted as a facilitator in four of the infringements, the GC held that the Commission had committed several errors of law. On 10 November 2017, the GC partially annulled the decision. NEX challenged the 2015 decision before the GC. The Commission deviated from the standard methodology defined in its 2006 Fining Guidelines - on the basis of point 37 of those Guidelines - since NEX had no turnover in the markets concerned. As NEX refused to settle, the Commission issued a separate infringement decision in February 2015 finding that NEX facilitated the infringements and fining it €14.9 million. Martin which admitted their involvement in one or more cartels in the YIRD sector. In a 2013 settlement decision, the Commission fined five banks and the broker R.P. In circumstances where the Commission applied the same complex method to two facilitators, general references to gravity, duration and nature of the infringement are not sufficient and do not enable proper judicial review. The Commission's duty to state reasons requires that the decision sets out the factors which enabled it to determine the gravity and duration of the infringement and explains the weighting and assessment of those factors.This may be justified notably where an undertaking having allegedly facilitated the cartel does not generate turnover in the markets concerned. Point 37 of the Fining Guidelines allows the Commission to depart from those Guidelines for the determination of the basic amount of the fine.
Restructuring, Special Situations and Insolvency.
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