CDC’s first damage case which resulted in landmark judgments and several 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.
Background – European Hydrogen Peroxide Cartel
On 3 May 2006 the European Commission announced that 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, and Evonik Degussa GmbH infringed the European cartel prohibition by participating in a single and continuous infringement regarding the hydrogen peroxide market, covering the whole EEA 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, exchanged commercially important and confidential information, and limited production.
CDC’s damages actions
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. The action concerns damage claims that CDC purchased from 32 companies of the pulp and paper industry. The companies are purchasers of hydrogen peroxide 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. The final analysis finds a minimum damage originally covered by CDC’s action of around EUR 254 million plus interest. Interest itself accumulated to almost EUR 110 million in 2009, when CDC brought the lawsuit, and continued to run.
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, in particular that all cartel members can be sued at the seat of one of them, given their jointly committed tort and joint and several liability. According to the Court, standard jurisdiction clauses contained in supply agreements do not cover claims for damages resulting from secret cartels. The case is now pending again before the Regional Court of Dortmund.
As is evident from public reporting CDC has reached out-of-court settlements with four of the defendants and has subsequently withdrawn the action against those companies. The case continues against the remaining defendants.
On 20 April 2011, CDC filed a 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 preliminary pleas raised by Kemira. The Court rejected all pleas and followed the argument 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.
Publication of a new Commission Decision
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 capable of facilitating the demonstration of the damage sustained, 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 appeal the Advocate General delivered his opinion on 21 July 2016 (Case C-162/15 P). It gives guidance on the alleged conflict between protection of the rights of leniency applicants and the right of access to information notably of persons potentially damaged by the anticompetitive conduct.
The European Court of Justice, in its judgement of 14 March 2017, 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 points to the fact that an infringement decision by the Commission supports cartel victims in actions for damages against the infringers. The Court also specifies the conditions for the publication of information from documents provided by cartel members to the Commission in support of a leniency statement. This as well will have a significant impact on the future practice of the Commission regarding the content of public of fining decisions.