transporte frigorífico

This post is also available in: Español

In its series of judgments of February 20, 2020, the Spanish High Court (Audiencia Nacional) annulled the decision of the Spanish National Commission for Markets and Competition (CNMC) imposing a fine of €8.8 million on twelve refrigerated road transport companies and their industry association, on the basis that the infringement was considered to be time-barred due to the absence of evidence in the four years prior to the start of the investigation.

In a decision of June 25, 2015, case S/0454/12-Refrigerated transport, the CNMC fined twelve refrigerated road transport companies and the Spanish Association of Controlled Temperature Transport (ATFRIE) for participating in price fixing agreements for international refrigerated road transport services between 1993 and 2012. According to the decision, since 2012, the companies tried to cover up the anticompetitive conduct by establishing a franchise company to set the minimum prices of refrigerated road transport and unify the terms of sale.

All companies and ATFRIE appealed the decision before the Spanish High Court claiming, among other grounds, the violation of the principle of presumption of innocence on the basis that there was no incriminating evidence of the collusion between 2008 and 2012. As a result, it was argued that the infringement was time-barred since more than four years had elapsed from the last anticompetitive event that was established.

The CNMC argued that the companies had merely changed the title of the meetings from 2008 onwards but were still fixing rates. In particular, the CNMC argued that: “prices were agreed and approved in the “rates” meetings that were subsequently called “costs” meetings even though the nature, organization and functioning of those meetings remained unchanged.

In its judgment of February 18, 2020, , the Spanish High Court ruled that, contrary to what was stated in the decision of the CNMC, from 2008, news from the industry, notices and lists of attendees at meetings of the association proved that the discussions were related to costs and, in fact, evidence showed that the companies explicitly declined to set minimum prices from that date on. According to the Court this was confirmed by the information available in industry magazines, to which the appealed decision refers. In particular, the Court concluded that “regarding 2009, 2010 and 2011, there is no document in the case file showing the alleged price fixing agreement. From the call notices for the annual cost meetings, it cannot be stated, that they continued applying the old operating system on price fixing, as the challenged decision considered”.

The absence of proof of the appellants’ participation in the described conduct leads the Spanish High Court to declare, in strict application of the European doctrine on continuous infringement (Case T-147/09 Trelleborg Industrie), that the infringement is time-barred and, consequently,  to annul the fine imposed, since the four-year limitation period established in Article 68.1 of Spanish Law 15/2007 for very serious infringements had already elapsed, as the sanctioning proceedings in question were initiated on July 1, 2013.

This ruling of the Spanish High Court sets a relevant precedent in the assessment of evidence in sanctioning proceedings concerning infringements of the competition rules and it seems to raise the standard of proof required for the CNMC when finding and fining a single and continuous infringement. Following the judgment, the authority shall carry out an exhaustive analysis of all the evidence available in the case file and effectively prove the participation of the companies in the alleged anticompetitive conduct during the entire period of their alleged participation.

This post is also available in: Español

Autores:

Asociada

44 artículos



maria.lopezridruejo@cuatrecasas.com

Asociada

13 artículos



claudia.valdesschliephake@cuatrecasas.com