Munich, January 23, 1014 - In a decision published today, the European Court of First Instance partly followed the legal opinion of Gigaset AG (previously trading under Arques Industries AG) and reduced the fine imposed on the company by the European Commission in its 2009 SKW case by EUR 1m. Gigaset's further claims were dismissed.
In July 2009, the Commission had conducted a competition case against various companies active in the calcium carbide market, and imposed fines in the overall amount of EUR 61.1m. An amount of EUR 13.3m was imposed jointly and severally upon SKW Stahl-Metallurgie GmbH, which had directly participated in the cartel, and its parent SKW Stahl-Metallurgie Holding AG (both jointly hereinafter referred to as 'SKW'). Additionally, the Commission held that Gigaset AG was jointly and severally liable for the fine, as it was the ultimate parent company of SKW at the time and had formed an 'economic unit' with SKW.
Gigaset AG filed for judicial review of this Commission decision and paid - on an ex gratia basis and pending further judicial review - paid an amount of EUR 6.65m to the EU Commission in 2009/2010. Today's court decision refers to this filing. Gigaset AG preliminary legal view is that following today's ruling, a part of the amount which was already paid will be reimbursed to Gigaset.
Today's ruling is not legally binding yet. Gigaset shall carefully review whether the court decision should be subject to further review in front of the European Court of Justice.
In parallel to the case which was closed today, Gigaset AG had brought a lawsuit in front of the civil courts against SKW. Gigaset argued that SKW, having directly participated in the cartel, should bear the fine completely by itself, and as such reimburse Gigaset AG for the amount already paid. This case has to date not brought clarity about the legally correct distribution of fines imposed 'jointly and severally' among SKW (as the direct participant of the cartel) and Gigaset AG as former ultimate parent which was only held co-liable for SKW's illegal behavior.
The legal question is currently discussed in front of the German Federal Court (Bundesgerichtshof), who has requested the European Court of Justice, on 9 July 2013, for a preliminary ruling. Gigaset continues to believe that internally among those parties fined by the Commission, SKW as the direct participant in the cartel will have to bear the full fine amount.