Our first damage case which resulted in several landmark judgments and significant settlements already 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:
- 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 Commission, the cartel members fixed and monitored target prices, allocated market shares and customers among each other, exchanged commercially important and confidential information, and limited production.
- 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 during the cartel period 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.
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.
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.
CDC Consulting SCRL
Avenue Louise 475
Phone: +32 (0) 2 213 49 20
Fax: +32 (0) 2 213 49 21
Phone: +49 (0) 631 303 790
Fax: +49 (0) 631 303 7910