If the imposition of a fine "irretrievably jeopardises the economic viability of the undertaking concerned and causes its assets to lose all their value", the Commission may reduce the fine. The four companies requested such a reduction, arguing that they were unable to pay the EUR 54 million fine and that their economic viability would be jeopardised if the fine was imposed. The Commission rejected their requests on two grounds. First of all, it considered that GSW should be able to increase its short-term credit facilities. Secondly, it found that the Celsa-group and its family owners had sufficient financial resources at their disposal, which they could use to aid GSW.
GSW appealed this decision before the GC. The GC considered that if it could be shown that GSW had opportunities to increase its credit facilities or that its shareholders possessed important financial means, the rejection of GSW's request based on inability to pay would be justified. Taking into account the non-used credit facilities, total assets, consolidated cash flow and a recent refinancing, the GC agreed with the Commission that it was possible for the companies to obtain the necessary funding or guarantees from credit institutions. Moreover, the GC considered that GSW had not submitted the information that was necessary to assess the importance of the shareholder's assets. According to the GC, this "lack of diligence" on behalf of the companies was enough to reject their application, as it falls to the company submitting an application for inability to pay to provide the necessary factual information to the Commission.
By dismissing the appeals, the GC confirmed that the test for inability to pay requests is applied strictly. In assessing such an application many factors will be relevant, such as the financial position of the shareholders of the applicant but also the possibility for the company to obtain additional financial means via a bank credit or, for example, the issuing of shares.
This article was published in the Competition Law Newsletter of July 2016. Other articles in this newsletter:
1. Court of Justice dismisses appeals in the Calcium Carbide Cartel
2. General Court confirms illegality of non-compete clause in telecoms transaction
3. District Court of Rotterdam rejects the applicability of arbitration clauses in antitrust damages litigation
4. Update on changes in antitrust damages claims legislation in the Netherlands
5. New maximum fines for competition law infringements in the Netherlands as of 1 July 2016
6. General Court rules that an implicit and unlimited guarantee does not necessarily constitute State aid