EU court ruling likely to tally with AG’s opinion in Timab cartel appeal: lawyer

ECJ Advocate General (AG), Henrik Saugmandsgaard, handed down​​ his judgement in late July this year.

He rejected Timab’s appeal of the General Court’s denial last year​​ that it had been penalized by the EU Commission, in terms of a higher fine, for having exited settlement talks related to the cartel case.

Saugmandsgaard judged the fine - nearly €60m - imposed on Timab as not excessive.

He agreed with the verdict of the General Court that the Commission was justified in the rationale it had used to reach the fine that was imposed on the French company.

The AG’s opinion is not binding on the ECJ.

But John Cassels, specialist in EU competition and regulation law at Fieldfisher, told this publication:

“There might be slight nuance in the eventual findings of the ECJ in respect of the AG's opinion, but I would be astounded if that court did not agree with his judgement. There has only been one or two occasions whereby the ECJ did not draw the same conclusions as the Advocate General, so it is an extremely rare event.”​

Pressure to settle 

And Cassels said he would expect the ECJ ruling on the Timab appeal to be months rather than weeks away.

“But I can understand the frustration of Timab in relation to the original decision. It did look like the company was being punished for withdrawing from settlement negotiations, as the Commission had proposed a much lower fine for cartel members during that process, of somewhere in the region of €40 to €45m.​

"The outcome of this legal action, and others, underline the increasing pressure on parties to enter settlement procedures, with national and European level regulators apparently looking to crank out these cases. ​

"But one could argue that the authorities, in encouraging parties to confess and settle, don’t have to prove their cases, and, ultimately this leads to soft law, and could be damaging to competition law long term,”​ argued Cassels.

Background​

A number of feed phosphate additive companies including Tessenderlo, FMC Corp and Ercros, were fined a total of €175m ($227m) in July 2010 over a 35-year long cartel for price fixing and market sharing in most of the EU.

Yara International and Kemira Oyj received immunity from a fine.

Timab, a subsidiary of the Roullier Group, was the only member of the cartel that did not use the Commission’s cartel settlement procedure, The Commission instigated a standard procedure against Timab and a fast-track one with the other members of the feed phosphate cartel.

However, in spite of the EU regulator downgrading the duration of the firm’s role in the cartel from 26 to 11 years in its final ruling, the penalty ultimately levied against Timab was €59.8m - around 25% higher than that originally proposed by the Commission.