The European Commission has repealed a decision of 11 November 2009 finding a cartel in the market for heat stabilisers in so far as it concerns the companies Ciba/BASF and Elementis. A judgment of the Court of Justice of 29 March 2011 in an unrelated case clarified the legal rules as to limitation periods for the imposition of fines by the Commission under Articles 101 and 102 of the Treaty. As a result of that clarification, it was clear that the Commission decision of 2009 was incorrect in that the limitation period on these two companies had expired.
As a result of today’s decision, Ciba/BASF and Elementis will have to pay no fine for their participation in the heat stabilisers cartel. The 2009 decision remains valid for the nine other undertakings which took part in the cartel.
By decision of 11 November 2009 the Commission imposed a total of € 173 860 400 fines on the participants of the heat stabilisers cartel (see IP/09/1695). The cartel lasted until 2000. However, Ciba/BASF and Elementis participated in the cartel only until 1998. Consequently, the Commission’s decision of 2009 was adopted for these two companies after the expiration of the ten-year period foreseen by Article 25(5) of the Antitrust Regulation No 1/2003 to limit the imposition of fines.
In the Heat Stabilisers decision the Commission argued that the ten-year-limitation period was suspended, because some companies (not Ciba/BASF and Elementis) had challenged the Commission’s investigative measures related to the cartel procedure before the EU courts. Such court action suspends the ten-year-limitation period (Article 25(6) of the Antitrust Regulation). The Commission took the view that the suspension applied to all companies involved in the cartel and not only to the ones that had brought court action.
In its judgment of 29 March 2011 in the ArcelorMittal case (C-201/09 and C-216/09), the ECJ clarified that, both, actions against final decisions and actions against investigative measures have suspensive effects only for the party that brought the action. As Ciba/BASF and Elementis did not bring any action in the heat stabilisers cartel before the adoption of the decision, it follows from this judgment that the ten-year-limitation period applies to their infringement. In order to respect this judgment, the Commission decided to repeal the Heat Stabiliser cartel decision for Ciba/BASF and Elementis. As a consequence, the fines imposed on them (€68 424 000 for Ciba/BASF and €32 575 000 for Elementis) will be lifted. For two other companies, the decision was amended because they were jointly and severally liable with Elementis for part of Elementis’ fine. The total amount of the fine imposed on these two companies does however not change.
For the remaining addressees, the decision remains unchanged.