On 6 March 2012, the EU General Court handed down three judgments relating to the appeals filed by FLS Past, FLSmidth and UPM-Kymmene Oyj against a European Commission decision fining them for their involvement in a cartel affecting the supply of industrial bags. The decision under appeal, which was adopted by the Commission in 2005, imposed a fine of € 290.71 million on 16 manufacturers of industrial plastic bags. In its judgments, the General Court reduced the fines imposed by the Commission on the applicants due to errors in the Commission's application of the principles of parental liability and in its assessment of the duration of the infringement.
As regards FLS Plast, the Commission had found the company liable as direct parent for the participation of its subsidiary Trioplast Wittenheim in the cartel. FLSmidth, the 100% owner of FLS Plast, was found liable in its capacity of indirect parent of Trioplast Wittenheim. However, in its judgment, the General Court found that the Commission had not established to the required legal standard that FLS Past and FLSmidth could be held liable for the anti-competitive behaviour of their subsidiary for the period from 31 December 1990 to 31 December 1991. During this period, FLS Plast held only a 60% shareholding in Trioplast Wittenheim. Thus, according to the Court, it could not be presumed that FLS Plast actually exercised control over its subsidiary. In these circumstances, the General Court held that it was for the Commission to show that Trioplast Wittenheim did not determine its commercial conduct independently. It was also for the Commission to show that that lack of independence, supposing it were to be established, was explained by the decisive influence unilaterally exerted by FLS Plast and FLSmidth over their subsidiary.
The General Court found that the Commission had failed to demonstrate that the applicants exercised actual control over Trioplast Wittenheim throughout the year 1991 and, therefore, concluded that the Commission had made an error in imputing Trioplast Wittenheim's infringement to its parent companies for the year 1991. As a result, the General Court considered appropriate to annul the decision insofar as it held the companies liable for the cartel between 31 December 1990 and 31 December 1991 and to adjust the amount of the fine imposed on FLS Past and FLSmidth. The two manufacturers now face a joint penalty of € 14.45 million, reduced from € 15.3 million.
The third applicant, Finnish manufacturer UPM-Kymmene Oyj saw its fine reduced by € 5.85 million. According to the General Court, the Commission erred in finding that the company was liable for the cartel prior to 10 October 1995. Importantly, although the applicant attended a meeting held by the undertakings involved in the cartel on 20 December 1994, the General Court found that the purpose of its attendance was to have exploratory discussions seeking to ascertain the circumstances in which it might possibly take part in the cartel. In addition, the undertaking did not join the cartel until 10 October 1995. Consequently, the General Court considered that the applicant's attendance at the meeting on 20 December 1994 represented an isolated infringement and was not proof of its participation in a single and continuous infringement for the period prior to 10 October 1995. As a result, it adjusted the fine imposed on UPM-Kymmene from € 56.55 million to € 50.7 million.
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