Judgment of the Tribunal in relation to an appeal brought by Balmoral Tanks Limited (the “First Appellant”) and Balmoral Group Holdings Limited (the “Second Appellant”) (together, “Balmoral”) against a decision of the Competition and Markets Authority (the “CMA”) taken on 19 December 2016 entitled “Galvanised steel tanks for water storage information exchange infringement” (CE/9691/12) (the “Information Exchange Decision”). In the Information Exchange Decision the CMA found that at or shortly after a meeting on 11 July 2012 (the “11 July Meeting”) several companies (including the First Appellant) had shared commercially sensitive information regarding their current and future pricing intentions for cylindrical galvanised steel tanks (“CGSTs”) which are used for water storage primarily for the purposes of fire suppression, serving sprinkler systems in certain buildings in the United Kingdom.
The information exchanged at the 11 July Meeting related, the CMA found, both to specific contracts for which the companies were supposed to be putting in competing bids and to generic pricing strategies for certain types of CGSTs. The CMA decided that this was a concerted practice which had the object of preventing, restricting or distorting competition, contrary to Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”) and to the Chapter 1 prohibition, contained in section 2 of the Competition Act 1998. The CMA imposed a fine of £130,000 on Balmoral. It did not impose a fine on the other parties to the concerted practice because those parties were already being fined as a result of another infringement decision adopted by the CMA also on 19 December 2016 (the “Main Cartel Decision”), an infringement which Balmoral was not a party to. The Main Cartel Decision found that between 29 April 2005 and 27 November 2012, four undertakings participated in bid rigging, price-fixing and market sharing in relation to the supply of CGSTs in the United Kingdom, contrary to Article 101 TFEU and the Chapter 1 prohibition because it had the object of restricting competition.
Balmoral challenged the CMA’s finding in the Information Exchange Decision that the 11 July Meeting gave rise to a concerted practice whereby confidential information was exchanged between the alleged parties. It also challenged the CMA’s decision to impose a fine on Balmoral and the amount of that fine.
For the reasons set out in the Judgment, the Tribunal was satisfied that Balmoral was party to the infringement identified in the Information Exchange Decision. Applying the case law which establishes where the line is to be drawn between innocuous discussion and infringement, the Tribunal unanimously found that Balmoral’s conduct was indeed an infringement. In relation to the fine imposed on Balmoral, the Tribunal concluded that there was no basis for criticising it; the fine was appropriate in the circumstances. The Tribunal therefore unanimously dismissed Balmoral’s appeal.
