Loading...
Hydrogen Peroxide Cartel 2017-10-13T13:37:50+00:00

Our first damage case which resulted in several landmark judgments and significant settlements relates to the Europe-wide Hydrogen Peroxide cartel. Hydrogen Peroxide is a bleaching agent which is mainly used by the pulp and paper industry. CDC launched damage actions in 2009 in Germany and in 2011 in Finland.

By decision of 3 May 2006 (Case COMP/38.620 – Hydrogen Peroxide) the European Commission found that following companies infringed the European cartel prohibition by participating in a single and continuous infringement regarding hydrogen peroxide, covering the whole European Economic Area between 1994 and 2000 at least:

According to the Commission, the members of the hydrogen peroxide cartel fixed and monitored target prices, allocated market shares and customers among each other, exchanged commercially important and confidential information, and limited production.


Further information on the hydrogen peroxide cartel:

  • Commission Decision in case COMP/F/38.620 of 03/05/2006 (EN)
  • Commission Press Release of 03/05/2006 (IP/06/560) (EN)

 

On 16 March 2009 CDC filed an action for 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 concerns damage claims that CDC previously purchased from 32 companies of the pulp and paper industry. The companies were direct purchasers of hydrogen peroxide cartel with a total of 94 production sites located in 13 European countries. The claim represents almost 50% of the total demand for hydrogen peroxide in Europe.

The analysis of the purchase data and other market data, which CDC has conducted with several renowned economic experts, confirms that the cartel caused an artificial price increase for hydrogen peroxide during the cartel period and even beyond due to lingering effects of the cartel. In fact, the final analysis concludes minimum damages originally covered by CDC’s action of around EUR 254 million plus interest. Following different settlements, CDC still claims minimum damages of approximately EUR 220.5 million plus interest in court. Interest itself accumulated to almost EUR 110 million in 2009, when CDC brought the lawsuit, and has been continually running day-by day.

On 26 June 2013, the Regional Court of Dortmund decided to request the European Court of Justice for a preliminary ruling on aspects of the jurisdiction and the effective enforcement of the European cartel prohibition. Following the opinion of the Advocate General of 11 December 2014, the Court of Justice issued its landmark judgment CDC Hydrogen Peroxide on 21 May 2015 (Case C-352/13). It widely confirms CDC’s views.

The case is now pending again before the Regional Court of Dortmund.

CDC has reached out-of-court settlements with two of the defendants in the meantime.



Further information on the German proceedings relating to the hydrogen peroxide cartel:

  • CDC Press Release of 23/04/2009 (EN)
  • CDC Press Release of 10/12/2010 (EN)

On 20 April 2011, CDC filed a separate legal action against Kemira Oyj for damages resulting from Kemira’s participation in the Hydrogen Peroxide cartel before the District Court of Helsinki. Two Finnish pulp and paper companies previously had sold and assigned their claims for damages resulting from the Hydrogen Peroxide cartel and purchases from Kemira.

The analysis of the purchase and market data, which CDC conducted with renowned economic experts, confirmed that the cartel caused an artificial increase of the hydrogen peroxide prices during the entire cartel period and beyond in relation to the Finnish claims. The damage including interest for which Kemira was held liable amounted to approximately EUR 78 million.


On 4 July 2013, the District Court of Helsinki rendered an interlocutory judgment dealing with a number of preliminary pleas raised by Kemira. The Court rejected all pleas and followed the argumentation of CDC. In particular, the Court confirmed (i) that it had jurisdiction, notably that jurisdictional and arbitration clauses were not applicable due to the secret nature of the cartel, (ii) that the damage claims were not time barred, and (iii) the validity of the claims transfer.

Subsequently in Spring 2014 CDC reached an out-of-court settlement with Kemira.



Further information on the Finnish proceedings concerning the hydrogen peroxide cartel:

  • CDC press release of 28/04/2011 (EN)
  • CDC press release on the judgment of the District Court of Helsinki of 04/07/2013 (EN)
  • Kemira press release of 19 May 2014 in relation to settlement with CDC (EN)
Following a request by CDC, the European Commission intended to re-publish a more detailed, non-confidential version of its Hydrogen Peroxide cartel decision of 3 May 2006. The objections raised by Akzo Nobel and Evonik Degussa were dismissed by the General Court of the European Union. In its judgments of 28 January 2015, the Court confirmed that the envisaged re-publication would reveal information that is capable of facilitating the demonstration of harm suffered by persons which, like CDC, consider themselves to have been adversely affected by the infringement penalised in the decision, as well as the causal link between that infringement and the alleged harm. CDC had intervened on the side of the Commission in the proceedings on the action by Akzo Nobel (Case T-345/12).


While the judgment on Akzo Nobel became binding, the parallel judgment on Evonik Degussa was appealed before the European Court of Justice. On this further appeal the Advocate General delivered his opinion on 21 July 2016 (Case C-162/15 P). It 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.


The European Court of Justice, in its judgement of 14 March 2017, finally set aside the judgment on Evonik Degussa for formal reasons (Case C-162/15 P). Apart from this, however, the Court essentially confirms the General Court. It particularly points to the fact that an infringement decision by the Commission enables cartel victims to be provided with support during their actions for damages against the infringers. The Court also specifies, in general terms, the conditions for the publication of information from documents provided by a cartel member to the Commission in support of a statement made to obtain leniency. This will have a significant impact on future cases as well.



Further information:
  • CDC press release of 28 January 2015 regarding the judgment of European General Court (EN)
  • CDC press release of 22 July 2016 in relation to AG Szpunar’s landmark opinion (EN)

Belgium Office

CDC Cartel Damage Claims
Avenue Louise 475
B-1050 Brussels
Belgium

Phone: +32 (0) 2 213 49 20
Fax: +32 (0) 2 213 49 21

Email CDC

 

Germany Office

CDC Cartel Damage Claims
Woogstrasse 4
D-67659 Kaiserslautern
Germany

Phone: +49 (0) 631 303 790
Fax: +49 (0) 631 303 7910

Luxembourg Office

CDC Cartel Damage Claims
27B Boulevard Marcel Cahen
L-1311 Luxemburg-Ville
Luxembourg

Tel: +352 26 95 30 87

Register for more Information about Hydrogen Peroxide Cartel