Chipmaker’s Cartel Denial Faces Second Chance

(CN) – A magistrate for the EU’s top court sided Thursday with Infineon Technologies in the company’s challenge to a $107 million it faces for price fixing.

Though the European General Court dismissed Infineon’s bid to have the fine annulled, Advocate General Melchior Wathelet said that the General Court erred in failing to examine Infineon’s claim.

Infineon was fined in 2014 by the European Commission for its conduct in the smart card chip market from 2003 to 2005, but the company’s bid to annul that fine alleged that the cartel never existed.

“It is apparent that the General Court did not respond to all the arguments raised by appellant, either at the time of the review of legality when it only verified the appellant’s participation in five anti-competitive discussions, even though the appellant had disputed the unlawfulness of the 11 contacts identified by the commission in the decision at issue and had provided reasons therefor or at the time of exercising its power of unlimited jurisdiction, when it stated that the appellant ‘merely … claims that it played a minor role in the infringement at issue’ and that ‘the reason that [it] received the largest fine is that it had a much higher turnover than the other undertakings punished’, the amount of the fine reflecting the economic significance of its participation in the infringement at issue,” Wathelet wrote.

“While I do not seek to question the relevance of that last statement, and cannot say whether the General Court would have reached a different conclusion had it examined all the complaints made by the appellant, it does appear that the General Court did not take into consideration, in a legally correct manner, all the essential factors to assess the gravity of the conduct of which the appellant is accused and that it did not respond to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced,” the opinion continues. “That is precisely the purpose of review by the Court of Justice in the context of an appeal.”

Melchior proposed that the Court of Justice set aside the General Court’s judgment and refer the case back to the General Court.

The advocate general’s opinion is not binding on the Luxembourg-based court, which now begins its own deliberations.

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