Final Report of the Hearing Officer (1)

Case AT.39563 – Retail Food Packaging (Re-adoption)

(2021/C 245/11)

The draft decision is addressed to three companies of the undertaking constituting the ‘CCPL Group’, namely CCPL S.c., Coopbox Group S.p.A., and Coopbox Eastern s.r.o. (the ‘addressees’).

BACKGROUND

On 24 June 2015, in Case AT.39653 Retail Food Packaging, the Commission adopted Commission Decision C(2015) 4336 final relating to a proceeding under Article 101 TFEU and Article 53 EEA (the ‘2015 Decision’). The 2015 Decision concluded a Commission investigation into five cartels concerning polystyrene plastic trays (‘foam trays’) and, in respect of one cartel, also polypropylene plastic trays (‘rigid trays’) used for retail packaging of fresh food such as meat, poultry and fish, involving, amongst others, the CCPL Group. The 2015 Decision established five separate infringements of Articles 101 TFEU and 53 EEA, each delineated by a different geographic scope and with different durations. The 2015 Decision imposed fines on, amongst others, the following five legal entities that were part of the CCPL Group at the time: CCPL S.c., Coopbox Group S.p.A., Poliemme S.r.l., Coopbox Hispania S.l.u. and Coopbox Eastern s.r.o., for their participation in three of the five cartels concerned by the 2015 Decision. (2)

By the 2015 Decision, the Commission imposed a total amount of fines of EUR 33 694 000 on the above-referred five legal entities of the CCPL Group. That total amount was determined after granting a 25 % reduction of the fines otherwise applicable on grounds of these entities’ reduced ability to pay as established by the Commission following the assessment of the inability to pay request lodged by them in accordance with point 35 of the Commission’s Guidelines on Fines. (3)

On 11 July 2019, the General Court rendered its judgment in Case T-522/15 (the ‘2019 Judgment’), (4) by which it annulled the fines imposed on the above-referred five legal entities of the CCPL Group in their entirety upholding the plea that the Commission had insufficiently reasoned its inability to pay assessment, while rejecting all the other pleas of the applicants. The General Court accordingly annulled the operative parts of the 2015 Decision imposing the said fines totalling EUR 33 694 000 on the above-referred five legal entities of the CCPL Group. (5)

RE-ADOPTION PROCEDURE

By letter of 18 September 2019, the Commission informed CCPL S.c., as ultimate parent of the CCPL Group and acting on behalf of the legal entities of the group when it made provisional payments and received reimbursement of these payments following the 2019 Judgment, of its intention to adopt a new decision imposing fines on the relevant entities of the CCPL Group, and inviting the concerned entities to submit their observations. By that letter, the Commission also informed CCPL S.c. of its intention to follow the same method of calculation of the adjusted basic amount as applied in the 2015 Decision. By its letter, the Commission also clarified that that method would entail applying the 10 % total turnover limit of the CCPL Group in the last full business year before the adoption of the new decision on each total of the fine amounts calculated for each of the three infringements committed. The letter finally informed CCPL S.c. that any possible request for fine reductions based on point 35 of the Guidelines on Fines, would be analysed on the basis of the CCPL Group’s most current financial situation.

On 4 October 2019, the addressees requested the Commission to consider their inability to pay under point 35 of the Guidelines on Fines. For its assessment of the request, the Commission sent CCPL Group several requests pursuant to Article 18(1) and (2) of Regulation (EC) No 1/2003 (6) asking it to submit information about its financial situation and the specific social and economic context it is in.

By letter of 28 October 2019, CCPL submitted its observations in reply to the letter of 18 September 2019. In particular, CCPL drew the attention of the Commission to the CCPL Group’s lower expected total turnover for 2019 compared to 2018 (and the cessation of operations in certain prior businesses) and requested the Commission to take into account the reduced turnover to the effect of applying the 10 % turnover limit provided for in Article 23(2) of Regulation (EC) No 1/2003.

By letter of 15 May 2020, the Commission confirmed its intention to adopt a new decision to replace the relevant sections of the operative part of the 2015 Decision annulled by the 2019 Judgment by imposing the applicable fines on the addressees and hold them liable for the participation in the three cartels in the sector of the supply of foam trays for retail food packaging, covering the separate geographic areas of Italy, South-West Europe (‘SWE’) and Central-Eastern Europe. Concerning the calculation of the upward limit of the applicable fines, the Commission confirmed its intention to apply the 10 % total turnover limit of the year preceding the one of adoption of the new decision on each total fines amount applicable per infringement. (7)

By letter of 15 June 2020, CCPL Group submitted further observations in reply to the letter of 15 May 2020, reiterating what it had stated in the letters dated 4 and 28 October 2019. CCPL Group submitted that the fine amounts to be determined should be reasonable, equitable, and in line with the fines imposed to the other addressees of the 2015 Decision, in order to comply with the principles of proportionality and equal treatment.

THE DRAFT DECISION

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which CCPL Group has been afforded the opportunity of making known its views. In the draft decision, the Commission does not address any new objections to the addressees, nor does it seek to alter the substance of the objections as set out in the Statement of Objections of 21 September 2012 in this case. Moreover, the Commission notes that Article 1 of the 2015 Decision became definitive, including with respect to the addressees that are concerned with the present proceedings. In the draft decision, due to the application of the 10 % legal maximum of CCPL Group’s total turnover in 2019 with respect to the infringements in Italy and SWE, the Commission comes to a total amount of fines of EUR 9 441 000 and concludes that the conditions set in point 35 of the Guidelines on Fines as regards inability to pay are not fulfilled at present.

In view of all of the above, and taking into account that CCPL Group has not addressed any requests or complaints to me, I consider that the effective exercise of the procedural rights of the parties to the proceedings in this case has been respected.

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, OJ L 275, 20.10.2011, p. 29 (‘Decision 2011/695/EU’).

(2)  On 4 October 2019, CCPL Group informed the Commission that Coopbox Hispania S.l.u. had started judicial liquidation procedures in 2018 and Poliemme S.r.l. had been incorporated into Coopbox Group S.p.A. in 2017.

(3)  Commission’s Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ C 210, 1.9.2006, p. 2).

(4)  Judgment of 11 July 2019, CCPL and Others v Commission, T-522/15, EU:T:2019:500, as rectified by the Order of 6 September 2019, CCPL and Others v Commission, T-522/15, EU:T:2019:599.

(5)  The General Court annulled Article 2, paragraph (1), letters (f) (g) and (h), paragraph (2), letters (d) and (e), and paragraph 4, letters (c) and (d) of the 2015 Decision.

(6)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(7)  By that letter, the Commission confirmed that the planned decision would impose fines on three entities of CCPL Group, i.e. the addressees. Concerning the remaining two entities of the CCPL Group that were addressed by the 2015 Decision, i.e. Poliemme S.r.l. and Coopbox Hispania S.l.u., the Commission stated that, because the first company had formally ceased to exist and the second company went into liquidation proceedings, these two entities would not be addressed by the planned decision.