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European Commission

Memo

Brussels, 14 March 2014

Antitrust: Commission welcomes General Court judgments in cement cartel case confirming its investigatory powers

The European Commission welcomes today's judgments by the General Court (cases T-292/11, T-293/11, T-296/11, T-297/11, T-302/11, T-305/11 and T-306/11) that uphold in general the 2011 Commission decision ordering them to supply information in the context of an on-going investigation into suspected anti-competitive practices in the markets for cement and related products (see IP/10/1696).

These judgments are important because they confirm the scope of the Commission's powers to investigate suspected antitrust infringements.

In particular, the Court confirmed that it is for the Commission to decide what information it considers necessary to request from companies when investigating potential anticompetitive practices, as long as the Commission can reasonably expect that the information would help it to determine whether the alleged infringement took place. In addition, the Court held that the Commission is entitled to request undertakings to submit the requested information in a specific format.

The Court also acknowledged that the Commission is not obliged to have information establishing the existence of an infringement before sending a request for information. It is sufficient that the Commission has reasonable suspicions of a breach of the EU antitrust rules. Moreover, the Commission is not obliged at the investigative stage of its enquiry to inform the undertakings of the evidence already in its possession, in order not to compromise the effectiveness of its enquiry. The Court may nevertheless verify the evidence in the Commission's possession that led the Commission to request information. The Court carried out this verification in the present case and it concluded that the Commission was justified to seek information from the investigated companies.

The Court accepted only the allegations of one company that the deadline to reply had been insufficient for one of the questions sent by the Commission.

The Commission's anti-trust investigation into suspected anti-competitive practices by several manufacturers of cement and related products is ongoing.

Background

In 2008 and 2009, the Commission carried out unannounced inspections in eight Member States at the premises of companies active in the cement and related products industry (see MEMO/08/676 and MEMO/09/409).

In December 2010, the Commission opened antitrust proceedings against a number of cement manufacturers for suspected breaches of EU rules banning restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union – TFEU), see IP/10/1696. The Commission is investigating possible import/export restrictions, market sharing and price coordination in the markets for cement, cement-based products (e.g., ready mix concrete) and other materials used to produce cement-based products (e.g., clinker, aggregates, blast-furnace slag, granulated blast-furnace slag, ground granulated blast-furnace slag, fly ash).

In March 2011, following several requests for information to which answers were incomplete, the Commission ordered the companies under investigation (Buzzi Unicem, Cemex, HeidelbergCement, Holcim, Italmobiliare, Schwenk, Lafarge and Valderrivas) to provide information that was necessary for investigating the alleged infringements. Article 18(3) of Regulation 1/2003 allows the Commission to request such information. Some of the companies appealed the decision, arguing that the information requested was not necessary to prove the infringement, that it was excessive and created a disproportionate burden on the companies and that the decision was not adequately motivated. The Court fully rejected these allegations.

Under the antitrust Regulation 1/2003, the Commission can, by simple request or by decision, require companies to provide all information it deems necessary to the investigation of a suspected infringement. A formal decision to request information, under Article 18(3) of the Regulation, obliges a company to reply in a correct and complete manner and within the specified time-limit. If it does not do so, the Commission can impose a fine of up to 1% of the company's total turnover.


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