Our first damage case which resulted in landmark judgments and significant settlements relate to the Europe-wide Hydrogen Peroxide cartel. Hydrogen Peroxide is a bleaching agent which is mainly used on 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:
- 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, cartel members 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 administrative proceedings:
- Commission Decision in case COMP/F/38.620 of 03/05/2006
- Commission Press Release of 03/05/2006 (IP/06/560)
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 has 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.
Our analysis of the purchase data and other market data 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. CDC is claiming more than EUR 475 million including interest.
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 judgment on 21 May 2015 (Case . The judgment widely confirmed CDC’s views. It is a landmark judgment clarifying the competence of courts for jointly and severally liable cartel members and the non-applicability of jurisdiction clauses in supply contracts. The procedure continues before the Regional Court of Dortmund.
CDC has reached out-of-court settlements with Evonik Degussa and Arkema.
- CDC Press Release of 23/04/2009
- CDC Press Release of 10/12/2010
- Bloomberg article about the first oral hearing of 16/12/2010
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.
Our analysis of the purchase and market data confirmed that the cartel caused an artificial increase of the hydrogen peroxide prices during the entire cartel period any 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 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 CDC reached an out-of-court settlement with Kemira.
- CDC Press Release of 28/04/2011
- CDC Press release on the judgment of the District Court of Helsinki of 04/07/2013
On 28 January 2015, the General Court of the European Union decided that the Commission can publish a more detailed non-confidential version of its Hydrogen Peroxide cartel decision of 3 May 2006. Akzo Nobel and Evonik Degussa challenged this publication. In the proceedings CDC intervened on the side of the Commission (T-345/12). The judgment is under appeal before the 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.
- CDC press release of 28 January 2015
- CDC press release in relation to AG Szpunar’s landmark opinion.
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