The Court of Justice has confirmed a penalty of EUR 13.2
million imposed by the European Commission on Toshiba for market sharing in the
power transformer sector. The judgment
comes within a day of the Court upholding the Commission’s fine against Toshiba
for its involvement in the gas insulated switchgear cartel over the period
1998-2004.
In the power transformer case the Commission maintained that
the infringement involving a ‘gentleman’s agreement’ between Toshiba and its
European competitors to protect their respective Japanese and EU markets was a
restriction by object. The Court dismissed
claims by the members of the cartel that the arrangement had no effect on
competition due to what were alleged to be insurmountable difficulties for Japanese
companies to penetrate the EU market.
The case raises the familiar debate over the classification
of restrictions of competition by object and restrictions by effect. The Court concluded that the arrangements amounted
to a market sharing cartel and as such constituted a restriction by object.
The outcome is not surprising. It is a reminder that a claim that an
agreement to stay out of a particular territory or reserve it to incumbent
suppliers does not restrict competition will rarely be accepted by a
competition authority. In this case the
Court upheld the Commission’s position that the agreement was a traditional
hard core restriction and the Commission did not have to prove anticompetitive
effects.
The case can be contrasted with the recent Cartes Bancaires case which has
revisited the debate over object restrictions.
Cartes Bancaires was less
straightforward which explains why in that case the Court reminded the
Commission of the need not to circumvent the evidential burden in cases
involving more complex arrangements.
Case C-373/14 P Toshiba Corporation v European Commission,
ECJ judgment, 20 January 2016 (ECLI:EU:C:2016:26)
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