CAT upholds CMA’s Infringement Decision in Galvanised Steel Tanks Information Exchange

06 Oct 2017 | by Monckton Chambers

The Competition Appeal Tribunal has dismissed an appeal by Balmoral Tanks against the CMA’s decision finding that Balmoral and its competitors infringed competition law by exchanging commercially sensitive information with respect to galvanised steel tanks.  The CMA found that an information exchange at a single meeting in July 2012 sufficed to establish the infringement.

The CMA had covertly video recorded the meeting as part of its criminal investigation into a seven year cartel between four suppliers of galvanised steel tanks. The CMA accepted that Balmoral was not part of that cartel but found that it had been guilty of a separate object infringement.

In its appeal, Balmoral argued that it attended the July 2012 meeting with the legitimate purpose of informing its competitors that it did not want to be involved in the cartel. It argued that it could not be criticised merely for having received inducements to join the cartel.  It also argued that a single meeting did not suffice to establish the infringement, that no sensitive information was exchanged at that meeting and that no fine should have been imposed given Balmoral’s positive impact on the market.

The Tribunal has fully upheld the CMA’s decision. In particular, it accepts the CMA’s findings that Balmoral was actively involved in an unlawful information exchange of sensitive information which reduced uncertainty on the market. The Tribunal confirms that, in the context of this market, the exchange of pricing information at a single meeting was unlawful.  The judgment carries out a detailed review of the CMA’s findings regarding the nature of the information exchanged between the parties and why that exchange constituted a “by object” restriction of competition.

The Tribunal stated that “It is because executives meeting together for a legitimate industry purpose must be firmly discouraged from giving into any temptation they may face to slip into illegitimate discussion of prices that the case law defines the concept of concerted practice in price exchanges so broadly.”

The Tribunal fully upheld the fine of £130,000 imposed on Balmoral, dismissing arguments that Balmoral should not have been fined having regard to the CMA’s approach to the cartelists, and that any fine imposed should have been lower.

The judgment can be found here.

Rob Williams and James Bourke acted for the CMA.