The first pan-European damage case which resulted in landmark judgments and significant settlements at EU and national level related to the EEA-wide hydrogen peroxide cartel. Hydrogen peroxide is a bleaching agent, mainly used by the pulp & paper industry. CDC launched damage actions in 2009 in Germany and in 2011 in Finland.
Background and facts
By decision dated 3 May 2006 in Case COMP/38.620, the European Commission found that the following companies infringed the European prohibition on cartels by participating in a single and continuous infringement regarding hydrogen peroxide, covering the whole territory of the European Economic Area (EEA) between 1994 and 2000 at least:
- Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, and EKA Chemicals AB
- Edison SpA, Ausimont SpA (now: Solvay Solexis SpA)
- FMC Corporation, and FMC Foret SA
- Kemira Oyj
- Snia SpA, and Caffaro Srl
- Solvay SA/NV
- Total SA, Elf Aquitaine SA, and Arkema SA (formerly: Elf Atochem SA and Atofina SA)
- L’Air Liquide SA, and Chemoxal SA
- Evonik Degussa GmbH
According to the findings of the Commission, cartel members fixed and monitored target prices, allocated market shares and customers among each other, exchanged commercially important and confidential information, and limited production. The cartel mainly damaged purchasers of hydrogen peroxide for use as bleaching agent in the pulp and paper industry, in the textile industry, for disinfection or in the environmental sector or as resource in the production of peroxide products.
Further Information on the administrative proceedings
- Decision COMP/F/38.620 (non-confidential version) of the European Commission of 03/05/2006 along with summary of this decision (COMP/38.620)
- Press release of the Commission of 03/05/2006 (IP/06/560)
Civil proceedings in Germany
On 16 March 2009 CDC filed a legal action for antitrust damages against Evonik Degussa GmbH, Akzo Nobel NV, Solvay SA/NV, Kemira Oyj, Arkema France SA, and FMC Foret SA before the Regional Court of Dortmund, Germany [Case No. 13 O 23/09 (Kart)].
The action enforces the antitrust damage claims previously purchased from 32 companies of the pulp and paper industry. The companies were direct purchasers of HP during the cartel period and had a total of 94 production sites located in 13 European countries. The claim filed before the Court in Dortmund represents almost 50% of the total demand for HP in Europe. This action is therefore one of the largest actions for damages resulting from a violation of antitrust law in Europe.
CDC’s analysis of the relevant purchase data and other market data confirms that the hydrogen peroxide cartel resulted in an artificial price increase for HP to the disadvantage of purchasers during the cartel period and even for some time beyond due to lingering effects of the cartel. CDC’s claim totals more than EUR 475 million including interest.
On 26 June 2013, the Regional Court of Dortmund decided to request the Court of Justice of the European Union for a preliminary ruling concerning the interpretation of European Union law on issues of jurisdiction and the effective enforcement of the European cartel prohibition (C-352/13). Following the opinion of EU Advocate General Jääskinen of 11 December 2014 the Court of Justice issued its judgment on 21 May 2015. The judgment widely confirmed CDC’s view and is widely recognized as a landmark judgment providing legal certainty on much debated procedural questions such as the competence of courts for jointly and severally liable cartel offenders and the non-applicability of jurisdictional clauses in supply contracts. Following the judgment of the Court of Justice the proceedings have resumed before the Regional Court Dortmund.
In parallel, CDC has settled the case with two of the defendants out-of court.
Civil proceedings in Finland
On 20 April 2011 CDC filed a legal action against Kemira Oyj for damages resulting from Kemira’s participation in the European hydrogen peroxide cartel before the District Court of Helsinki.
Prior to the filing of the action, two Finnish pulp and paper companies sold their cartel-related damage claims to CDC in relation to hydrogen peroxide purchases from Kemira.
The analysis of the relevant transaction and market data confirmed that the cartel resulted in an artificial increase of the hydrogen peroxide prices during the entire cartel period also in relation to the Finnish claims. As a result of the artificially high price level at the end of the infringement, the cartel had price effects even after its termination. The total damage (excluding interest) for which Kemira was held liable amounted to approximately €21 million. Interest according to the applicable Finnish rules amounted to up to €56.5 million.
On 4 July 2013, the Helsinki District Court in Finland rendered an interlocutory judgment dealing with a number of preliminary pleas raised by Kemira. The Court rejected all of Kemira’s pleas and followed the argumentation of CDC. In particular the court confirmed (i) that it had jurisdiction, in particular that jurisdictional and arbitration clauses were not applicable due to the clandestine nature of the hydrogen peroxide cartel, (ii) that the damage claims were not time barred in light of the limitation periods commencing by knowledge, and (iii) the validity of the claims transfer. For further details see press release. Again, this judgment is an important precedent and provides legal certainty for future cases.
In spring 2014, CDC settled with Kemira out-of court.
Publication of a new Commission decision
On 28 January 2015, the General Court of the European Union, Luxembourg, decided that the Commission could publish a more detailed non-confidential version of its cartel decision of 3 May 2006 in Case COMP/38.620. Akzo Nobel and its subsidiaries as well as Evonik Degussa challenged such publication. In the proceedings CDC intervened on the side of the Commission (T-345/12, for further details see press release and Access to Documents Case). The judgment is currently under further appeal before the European Court of Justice.
On 21 July 2016, Advocate General (AG) Maciej Szpunar published a landmark opinion in advance of the impending Judgment of the Court of Justice. The opinion gives clear guidance on the alleged conflict between protection of the rights of leniency applicants on the one hand and on the other hand the right of access to information of the public in general and persons potentially damaged by the reported anticompetitive conduct in particular.