OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 March 2009 (1)

Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P

Erste Bank der österreichischen Sparkassen AG (C‑125/07 P),

Raiffeisen Zentralbank Österreich AG (C‑133/07 P),

Bank Austria Creditanstalt AG (C‑135/07 P),

Österreichische Volksbanken AG (C‑137/07 P),

v

Commission of the European Communities

(Appeals – Competition – National cartel – Austrian market for bank products and services – ‘Lombard Club’ – Article 81 EC – Effect on trade between Member States – Imputability of liability for an infringement – Regulation No 17 – Articles 11 and 15(2) – Guidelines on the method of setting fines – Gravity of the infringement – Obligation for the Commission to demonstrate an actual impact of the infringement on the market – Classification by categories of the members of the cartel – Assessment of the economic capacity of the offenders – Attenuating circumstances – Cooperation during the administrative procedure – Principle of equal treatment – Respect for the rights of the defence)

Table of contents

I –  Legal framework

II –  Facts

III –  The actions before the Court of First Instance and the judgment under appeal

IV –  The procedure before the Court of Justice and the forms of order sought by the parties

V –  The pleas in law

A – The pleas raised by Erste (Case C‑125/07 P)

B – The pleas raised by RZB (Case C‑133/07 P)

C – The pleas raised by BA‑CA (Case C‑135/07 P)

D – The pleas raised by ÖVAG (Case C‑137/07 P)

VI –  Joinder of the appeals and the way in which they are dealt with in the present Opinion

VII –  Preliminary observations

A – The extent of the Court’s jurisdiction in the present appeals

B – The legal and factual context of the review of anti-competitive practices and agreements 

VIII –  The pleas alleging infringement of Article 81(1) EC

A – First plea, alleging incorrect assessment of the condition that there must be an effect on trade between Member States

1. First part of the plea, alleging incorrect assessment of the ability of a cartel covering the entire national territory to have an appreciable effect on trade between Member States

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment by the Court of First Instance owing to an overall examination of the cross-border effects of the cartel

a) Arguments of the parties

b) Assessment

i) First complaint, alleging incorrect application and incorrect assessment of the Community case-law

– Concerning VGB and Others v Commission

– Concerning Bagnasco and Others

ii) The incorrect, insufficient and contradictory nature of the Court of First Instance’s analysis relating to the definition of the relevant market

– The way in which the Court of First Instance evaluated the complaints alleging incorrect definition of the relevant market

– The insufficient and contradictory nature of the reasoning

– The incorrect reference to SPO and Others v Commission

3. Third part of the plea, alleging failure to show that the cartel had an appreciable effect on intra-Community trade

a) Arguments of the parties

b) Assessment

4. Fourth part of the plea, alleging failure to analyse the actual effects of the cartel on the market

a) Arguments of the parties

b) Assessment

B – Second plea, alleging incorrect imputation of liability for the infringement

1. Arguments of the parties

2. Assessment

IX –  The pleas alleging breach of Article 15(2) of Regulation No 17 in that the assessment of the gravity of the infringement and of the basic amount of the fine is vitiated by errors of law and reasoning and breaches the rights of the defence

A – First plea, alleging errors of law as regards the assessment of the gravity of the infringement

1. First part of the plea, alleging an assessment inconsistent with the Guidelines

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment of the ‘very nature’ of the infringement

a) Arguments of the parties

b) Assessment

3. Third part of the plea, alleging incorrect assessment with respect to ‘the actual impact [of the infringement] on the market’

a) Arguments of the parties

b) Assessment

i) The Community judicature’s approach

ii) My point of view

4. Fourth part of the plea, alleging incorrect assessment with respect to ‘the scope of the relevant geographic market’

a) Arguments of the parties

b) Assessment

5. Fifth part of the plea, alleging incorrect assessment by the Court of First Instance of the influence of the selective nature of the proceedings and breach of the duty to state reasons

a) Arguments of the parties

b) Assessment

6. Sixth part of the plea, alleging failure to carry out a global assessment of the gravity of the infringement

a) Arguments of the parties

b) Assessment

7. Seventh part of the plea, alleging incorrect assessment with respect to the division of the appellants into categories

a) The complaints raised by the appellants

i) First complaint, alleging that the attribution to the centralised institutions of the market shares of the banks in the decentralised sectors was unlawful

– The principle of the attribution of market shares and the assessment criteria used for that purpose

– The breach of Article 15(2) of Regulation No 17, of the principle of the proportionality of the penalty, of the principle of personal liability for infringements of competition law and of the principle of equality

ii) Second complaint, alleging breach of the rights of the defence

iii) Third complaint, alleging incorrect assessment of the role and functions of the central institutions within the bank groupings

iv) Fourth complaint, alleging incorrect determination of the market shares of Erste and the savings banks grouping

v) Fifth complaint, alleging distortion of the facts and the evidence

b) Assessment

First complaint, alleging that the attribution to the central institutions of the market shares of the banks in the decentralised sectors was unlawful

B – Second plea, alleging errors of law, failure to state reasons and distortion of the evidence with respect to the existence of attenuating circumstances

a) First part of the plea, alleging incorrect assessment by the Court of First Instance of ÖVAG’s passive conduct

i) Arguments of the parties

– First complaint, alleging incorrect exercise of the Court of First Instance’s power of review

– Second complaint, alleging use of an incorrect assessment criterion

– Third complaint, alleging distortion of the evidence submitted to the Court of First Instance

– Fourth complaint, alleging a contradiction in the grounds of the judgment

ii) Assessment

b) Second part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the participation of the public authorities in the meetings of the banking committees 

i) Arguments of the parties

ii) Assessment

c) Third part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the public nature of the meetings 

i) Arguments of the parties

ii) Assessment

C – Third plea, alleging errors of law, breach of the principles of equal treatment, protection of legitimate expectations and the rights of defence, and insufficient and contradictory reasoning with respect to the application of Section D of the Leniency Notice

1. First part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the Commission’s power of assessment and the exercise of its own power of review

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging errors of law in the application of the Leniency Notice

a) First complaint, alleging use of an incorrect assessment criterion and breach of the principle of equal treatment

i) Arguments of the parties

ii) Assessment

b) Second complaint, alleging errors of law with respect to the examination of the extent of the undertakings’ cooperation, breach of the principles of equal treatment, protection of legitimate expectations and respect for the rights of the defence, and insufficient and contradictory reasoning

i) RZB’s first argument, alleging incorrect assessment of the voluntary nature of the responses to the requests for information and breach of the rights of the defence

– Arguments of the parties

– Assessment

ii) Second argument, alleging errors of law in relation to the assessment of the joint exposition of the facts

– Arguments of the parties

– Assessment

iii) Third argument, alleging incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement and breach of the principle of equal treatment

– Arguments of the parties

– Assessment

iv) Fourth argument, alleging reversal of the burden of proof concerning the value of RZB’s cooperation and breach of the principle of protection of legitimate expectations

– Arguments of the parties

– Assessment

v) Fifth argument, alleging errors of law and contradictory reasoning in the Court of First Instance’s analysis of the value of the additional documents submitted by BA‑CA

– Arguments of the parties

– Assessment

vi) Sixth argument, alleging failure to take BA-CA’s responses to the statement of objections into consideration

– Arguments of the parties

– Assessment

3. Third part of the plea, alleging failure to respect the rights of the defence in that they include the right to be heard

a) Arguments of the parties

b) Assessment

D – Fourth plea, alleging breach of the rights of the defence in that they include the right to be heard and of the Court of First Instance’s duty to state reasons with respect to its findings on the requests for a reduction in the fines

1. Arguments of the parties

2. Assessment

X –  The consequences of the judgment under appeal being set aside

A – First plea, alleging incorrect assessment of the gravity of the infringement and of the basic amount of the fine, taking into account the fact that the cartel was not shown to have had an actual impact on the market

1. Arguments of the parties

2. Assessment

B – Second plea, alleging incorrect assessment as regards the classification into categories of Erste, RZB and ÖVAG for the purposes of the assessment of the gravity of the infringement and of the calculation of the basic amount of the fine

1. The decision at issue

2. Summary of the arguments of the parties 

3. Assessment

XI –  Costs

XII –  Conclusion

1.        The present case has as its subject-matter the appeals lodged by four Austrian banks, Erste Bank der österreichischen Sparkassen AG (2) (Case C‑125/07 P), Raiffeisen Zentralbank Österreich AG (3) (Case C‑133/07 P), Bank Austria Creditanstalt AG (4) (Case C‑135/07 P) and Österreichische Volksbanken AG (5) (Case C‑137/07 P) against the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Raiffeisen Zentralbank Österreich and Others v Commission. (6)

2.        By the judgment under appeal, the Court of First Instance essentially upheld Commission Decision 2004/138/EC, (7) which found that those undertakings had participated in a series of agreements and concerted practices on the market for bank products and services in Austria, contrary to Article 81 EC. None the less, the Court of First Instance, in the exercise of its jurisdiction to review the findings of fact made by the Commission of the European Communities concerning the duration of the infringement and the banks’ cooperation with the Commission, amended the penalty imposed on Österreichische Postsparkasse AG (‘PSK’).

3.        In the present appeals, the appellants dispute the Court of First Instance’s analysis of the conditions necessary for the application of Article 81(1) EC and, in particular, the condition relating to an effect on trade between Member States. They further criticise the Court of First Instance for having infringed Article 15(2) of Council Regulation No 17 (8) by, in particular, incorrectly assessing the gravity of the infringement for the purpose of calculating the fine. Last, the appellants raise a number of complaints against that Court’s assessment concerning the existence of attenuating circumstances and the extent to which the appellants cooperated in the proceedings.

4.        In the present Opinion, I shall propose that the Court should set aside the judgment under appeal in that the Court of First Instance made two errors of law in the context of its assessment of the gravity of the infringement for the purpose of calculating the basic amount of the fine.

5.        I consider, in effect, that the Court of First Instance made a first error of law in holding that the Commission could rely on the implementation of the cartel in order to conclude that the infringement had an actual impact on the market. I further consider that the Court of First Instance made a second error of law and vitiated the judgment under appeal with inconsistent reasoning in holding that, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, the Commission could attribute to Erste, to RZB and to ÖVAG, as central institutions, the market shares of the banks in their decentralised sectors, when it did not impute to them liability for the unlawful conduct of those decentralised sectors.

6.        Since in my view the state of the proceedings so permits, I shall propose that the Court, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, should itself give final judgment on the two pleas for annulment raised before the Court of First Instance. I shall then propose that the Court, after deciding to give judgment on the merits of the case, should annul Article 3 of the decision at issue and, in the exercise of its unlimited jurisdiction, fix the amount of the fines to be imposed on each of the undertakings concerned.

I –  Legal framework

7.        Article 81 EC prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.

8.        Where there is an infringement of that provision, the Commission may, pursuant to Article 15(2) of Regulation No 17, ‘impose on undertakings or associations of undertakings fines of from [EUR 1 000] to [EUR 1 million], or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’.

9.        With a view to ensuring the transparency and impartiality of its decisions in the eyes of the undertakings and of the Community judicature alike, the Commission published, in 1998, guidelines in which it sets out the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17. (9)

10.      The Guidelines provide, at Section 1, that, for the purpose of calculating the amount of fines, the basic amount is to be determined according to the criteria set out in Article 15(2) of Regulation No 17, namely the gravity and duration of the infringement.

11.      In the first place, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market (first paragraph of Section 1A of the Guidelines). In that context, infringements are to be put into one of three categories, namely ‘minor infringements’, for which the likely fines are between EUR 1 000 and EUR 1 million; ‘serious infringements’, for which the likely fines are between EUR 1 million and EUR 20 million; and ‘very serious infringements’, for which the likely fines are above EUR 20 million (first to third indents of the second paragraph of Section 1A of the Guidelines).

12.      In the second place, the gravity of the infringement is analysed by reference to the characteristics of each undertaking concerned. Within each of those categories, the proposed scale of fines will make it possible to apply differential treatment of undertakings according to the nature of the infringement committed. The Commission then takes account of the effective economic capacity of the undertakings concerned to cause damage and sets the fine at a level which must ensure that it has a sufficiently deterrent effect (fourth paragraph of Section 1A of the Guidelines). It is at this stage that the Commission may place the undertakings in different categories and apply weightings to the starting amount of the fine for each undertaking.

13.      In the third place, the Commission takes account of the duration of the infringement.

14.      Under Sections 2 and 3 of the Guidelines, the Commission may then take into account certain aggravating or attenuating circumstances and increase or reduce the basic amount accordingly.

15.      Furthermore, in accordance with Section 4 of the Guidelines, the Commission may apply its notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases. (10) That notice defines the conditions in which undertakings which cooperate with the Commission during its investigation into a cartel may be exempted from fines or be granted a reduction in the fine which they would otherwise have had to pay.

16.      Section D of the Leniency Notice is worded as follows:

‘Significant reduction in a fine

1.     Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.

2.     Such cases may include the following:

–        before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

–        after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

17.      By way of general observation, the first subparagraph of Section 5(a) of the Guidelines states that the final amount of the fine may not in any case exceed 10% of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17.

II –  Facts

18.      The facts, as described in the judgment under appeal, may be summarised as follows.

19.      On 30 June 1997, the political party Freiheitliche Partei Österreichs lodged a complaint against eight Austrian credit institutions suspected of having participated in agreements and/or concerted practices contrary to Article 81 EC. In June 1998, the Commission carried out unannounced inspections at the premises of those undertakings and then, in September 1998, it sent them a request for information. The main banks concerned offered the Commission their ‘cooperation’ in the investigation of the case.

20.      On 13 September 1999, the Commission sent to eight banks the statement of objections which it had adopted on 11 September 1999. The banks had access to the file, and submitted written observations. They were also given a hearing. The Commission then sent a supplementary statement of objections on 22 November 2000, on which the undertakings concerned were able to submit written and oral observations. The Commission essentially alleged that those undertakings had set up what it described as the ‘Lombard network’, that is to say, a series of regular meetings in which they concerted at regular intervals their conduct with respect to the main parameters affecting competition on the market in banking products and services in Austria.

21.      On 11 June 2002, the Commission adopted the decision at issue.

22.      The Commission characterised the facts established as a complex infringement of long duration. The undertakings to which the decision at issue was addressed were chosen on the basis of the frequency of their participation in the main committees and their role on the Austrian banking market because of their size.

23.      The decision at issue states that there was in the past in Austria a long tradition of agreements among banks, mainly about interest rates and charges/fees, based in some measure on national legislation. The legislation in question was repealed by 1 January 1994 at the latest, when the Republic of Austria acceded to the European Economic Area (EEA) and when the Law on the banking system (Bundesgesetz über das Bankwesen) (11) entered into force. None the less, the Commission established that the credit institutions continued to conclude agreements within an institutionalised and interconnected network of banking committees.

24.      The decision at issue explains that those numerous, wide-ranging committees led to a situation where the institutions concerned regularly and continuously jointly coordinated their behaviour on the market, particularly with respect to interest rates and bank charges/fees.

25.      The ‘Lombard Club’ was the top-level body, composed of senior representatives of the main Austrian banks. One level down were the product-based (lending, deposits) committees or special committees dealing with the self-employed (for example, the liberal professions), with individuals (for example, mortgages) or with matters of relevance from a competition point of view (for example, the Export Financing Committee). There were also regional committees in all the Austrian Länder. The Commission emphasises the special role played by the central institutions, commonly called the ‘lead institutions’, in the coordination and representation of their decentralised sectors, namely, in Erste’s case, the savings bank sector, in RZB’s case, the Raiffeisen sector, and, in ÖVAG’s case, the credit union sector. (12)

26.      In Article 1 of the decision at issue, the Commission states that the eight banks to which that decision was addressed infringed Article 81(1) EC by taking part in agreements and concerted practices in respect of prices, charges and other parameters of competition, with the object, from 1 January 1995 to 24 June 1998, of restricting competition on the market in banking products and services in Austria.

27.      Article 2 of that decision requires that the undertakings concerned immediately bring an end to the infringement.

28.      Under Article 3 of the decision at issue, the Commission imposes a fine on each of those undertakings, in particular a fine of EUR 37.69 million on Erste, EUR 30.38 million on RZB, EUR 30.38 million on Bank Austria AG and EUR 7.59 million on ÖVAG.

29.      Those fines were calculated on the basis of the method set out in the Guidelines and also of the Leniency Notice.

30.      As regards the gravity of the infringement, the Commission characterises the meetings of the banks as a very serious infringement of Article 81 EC, and the comparatively limited size of the relevant geographic market does not alter that assessment. Next, the Commission divides the participants in the agreements into five categories, according to their respective market shares. It thus attributes to the lead institutions the market shares of the banks in their decentralised sectors.

31.      As regards the duration of the infringement, the Commission takes the period from 1 January 1995 to June 1998. In light of that duration, it increased the starting amount of the fine by 35%.

32.      The Commission does not accept that the banks can rely on any attenuating circumstance. On the other hand, it grants, in application of the Leniency Notice, a reduction of 10% of the fine on the ground that the addressees of the decision at issue have not contested the facts.

III –  The actions before the Court of First Instance and the judgment under appeal

33.      RZB, by application lodged at the Registry of the Court of First Instance on 30 August 2002, then Erste, BA‑CA and ÖVAG, by applications lodged on 2 September 2002, and certain other banks to which the decision at issue was addressed brought actions for the annulment of that decision.

34.      By the judgment under appeal, the Court of First Instance dismissed the appellants’ actions and ordered them to pay the costs.

IV –  The procedure before the Court of Justice and the forms of order sought by the parties

35.      Pursuant to Article 56 of the Statute of the Court of Justice, Erste, by application lodged at the Court Registry on 2 March 2007, and RZB, BA‑CA and ÖVAG, by applications lodged on 6 March 2007, brought appeals against the judgment under appeal.

36.      Erste, RZB, BA‑CA and ÖVAG claim that the Court should:

–        primarily, set aside the judgment under appeal in that it dismisses their actions for annulment, and annul the decision at issue;

–        in the alternative, reduce the amount of the fines imposed on the appellants under Article 3 of that decision;

–        in any event, order the Commission to pay the costs; and

–        very much in the alternative, Erste and ÖVAG also request the Court to set aside the judgment under appeal and refer the case back to the Court of First Instance.

37.      In all the cases, the Commission contends that the Court should:

–        dismiss the appellants’ appeals in their entirety;

–        uphold the judgment under appeal; and

–        order the appellants to pay the costs of the proceedings.

V –  The pleas in law

A –    The pleas raised by Erste (Case C‑125/07 P)

38.      Erste raises three pleas in law whereby it seeks annulment of the decision at issue in its entirety, or a reduction in the amount of the fine imposed on it.

39.      In the context of the first plea, Erste claims that there has been an infringement of Article 81(1) EC. This plea may be subdivided into two parts:

–        the first part of the plea alleges incorrect assessment of the condition relating to an effect on trade between Member States; and

–        the second part of the plea alleges an error of law with respect to the imputability of the infringement.

40.      In the context of the second plea, Erste claims that there has been a breach of Article 15(2) of Regulation No 17 owing to an incorrect assessment of the gravity of the infringement and of the starting amount of the fine. In support of this plea, Erste disputes the division of the undertakings into categories by the Commission for the purpose of calculating the fine. In that regard, this plea consists of two parts:

–        the first part alleges errors of law made on account of the imputation to Erste of the market shares of the decentralised savings bank sector; and

–        the second part alleges incorrect determination of the market shares of Erste and of the decentralised savings bank sector.

41.      Last, in the context of the third plea, Erste claims that there has been a breach of the rights of the defence, in that the statement of objections did not mention the Commission’s intention to attribute to Erste the market shares of the decentralised savings bank sector.

B –    The pleas raised by RZB (Case C‑133/07 P)

42.      RZB also raises three pleas, seeking, essentially, annulment of the decision at issue in its entirety, or a reduction in the amount of the fine imposed on RZB.

43.      In the context of the first plea, RZB disputes the existence of an infringement of Article 81(1) EC, on account of an incorrect assessment of the condition relating to an effect on trade between Member States.

44.      In support of the second plea, RZB claims that there has been a breach of Article 15(2) of Regulation No 17 in that the analysis relating to the gravity of the infringement is incorrect and vitiated by errors of law. This plea may be subdivided into six parts:

–        in the context of the first three parts, RZB maintains that the Court of First Instance did not correctly assess, respectively, the nature of the infringement, its actual impact on the market and its geographic scope;

–        in support of the fourth part, RZB maintains that the Court of First Instance erred in law by not taking the selective nature of the proceedings into account;

–        in the context of the fifth part, RZB criticises the Court of First Instance for not having carried out a global analysis of the gravity of the infringement; and

–        in support of the sixth part, RZB takes issue with the division of the undertakings into categories by the Commission for the purpose of calculating the amount of the fine. RZB disputes the imputation to it of the market shares of its decentralised sector and in that regard puts forward five complaints. It submits that such imputation is, first, without legal basis; that it breaches, second, the principle that a penalty must be appropriate to the gravity of the facts, third, the principle of the personal nature of liability for infringements of competition law and, fourth, the principle of equality; and, last, that the reasoning in the judgment under appeal on this point is contradictory.

45.      In support of the third plea, RZB submits that there have been errors of law in the application of Section D of the Leniency Notice. This plea may be further divided into two parts:

–        the first part alleges use of an incorrect assessment criterion. In that regard, RZB puts forward two complaints, alleging, first, breach of the principle of non-retroactivity and, second, breach of the principle of the protection of legitimate expectations;

–        the second part alleges incorrect assessment of the degree of RZB’s cooperation during the proceedings and may be subdivided into four complaints:

–        the first three complaints allege, first, incorrect assessment as regards the voluntary nature of the responses to the requests for information; second, an error of law in the assessment of the joint exposition of the facts; and, third, incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement; and

–        in support of the fourth complaint, RZB takes issue with the Court of First Instance for having reversed the burden of proof with respect to the value of its cooperation and having thus breached the principle of the protection of legitimate expectations.

C –    The pleas raised by BA‑CA (Case C‑135/07 P)

46.      BA‑CA raises four pleas, seeking a reduction in the amount of the fine imposed on it under Article 3 of the decision at issue.

47.      In the context of the first plea in law, BA-CA claims that there has been a breach of Article 15(2) of Regulation No 17 in so far as the assessment of the gravity of the infringement, and in particular of its actual impact on the market, is incorrect. This plea consists of two parts:

–        the first part alleges incorrect assessment of the existence of economic effects caused by the banking committees; and

–        the second part alleges breach of the principles governing the taking of evidence.

48.      In support of the second plea, BA-CA claims that there has been an incorrect assessment of the attenuating circumstances. This plea may be subdivided into two parts:

–        in the first part, BA-CA takes issue with the Court of First Instance for not having taken into account the fact that certain public authorities participated in the meetings; and

–        in support of the second part, BA-CA contends that the Court of First Instance made various errors of law by failing to take account of the public nature of the committees.

49.      In the context of the third plea, BA-CA asserts that there have been various errors of law, and also a breach of fundamental principles as regards the application of Section D of the Leniency Notice. This plea consists of three parts:

–        in support of the first part, BA-CA disputes the Court of First Instance’s analysis with respect to the Commission’s power of discretion and to its own power of review;

–        the second part alleges use of an incorrect assessment criterion and breach of the principles of equal treatment and protection of legitimate expectations;

–        the third part alleges incorrect assessment of the extent of BA-CA’s cooperation. It may be subdivided into four complaints:

–        the first two complaints allege incorrect assessment with respect, first, to the value of the joint exposition of the facts and, second, to the value of the additional documents submitted by BA-CA;

–        in the third complaint, BA-CA takes issue with the Court of First Instance for not having taken account of its responses to the statement of objections; and

–        the fourth complaint alleges breach of the right to be heard.

50.      In support of the fourth plea, BA-CA claims that the Court of First Instance, in the context of its findings on the applications seeking a reduction in the fines, failed to respect BA-CA’s rights of defence in that they include the right to be heard.

D –    The pleas raised by ÖVAG (Case C‑137/07 P)

51.      Like Erste and RZB, ÖVAG also raises three pleas seeking, essentially, either annulment of the decision at issue in its entirety or a reduction in the amount of the fine imposed on it by the Commission.

52.      In the context of the first plea, ÖVAG disputes the existence of an infringement of Article 81(1) EC, on account of an incorrect assessment of the condition relating to an effect on trade between Member States. This plea may be subdivided into three parts:

–        the first part alleges errors of law and of reasoning with respect to the ability of a purely national agreement to affect intra-Community trade;

–        the second part alleges errors of law by the Court of First Instance in making a global assessment of the cross-border effects of the cartel. In that regard, ÖVAG puts forward two complaints, alleging, first, incorrect assessment of the Community case-law and, second, incorrect, insufficient and contradictory analysis relating to the definition of the relevant market; and

–        the third part alleges that the judgment under appeal fails to demonstrate that the cartel had any actual effects on the market.

53.      In the context of the second plea, ÖVAG claims that there has been a breach of Article 15(2) of Regulation No 17, in so far as the assessment of the gravity of the infringement, and in particular the division of the undertakings into categories by the Commission for the purpose of calculating the fine, was incorrect.

54.      In the context of the third plea, ÖVAG alleges errors of fact, failure to state reasons and distortion of the facts with respect to the assessment of the attenuating circumstances.

VI –  Joinder of the appeals and the way in which they are dealt with in the present Opinion

55.      On account of the connection between them, the present cases were joined for the purposes of the judgment, pursuant to Article 43 of the Rules of Procedure. In so far as certain of the pleas in law raised by the appellants overlap, I have decided to deal with them together, for reasons of clarity.

56.      For the purposes of my analysis, I shall first examine the pleas whereby the appellants challenge the lawfulness of the decision at issue in its entirety. In that regard, I shall analyse the pleas whereby they dispute the existence of an infringement of Article 81(1) EC referred to in Article 1 of that decision.

57.      Second, I shall examine the pleas whereby the appellants seek to obtain a reduction in the amount of the fine fixed by the Commission in Article 3 of the decision. In that regard, I shall analyse the pleas alleging incorrect assessment of the gravity of the infringement and relating to the division of the appellants into categories. I shall then examine the pleas relating to the assessment of the attenuating circumstances and the undertakings’ cooperation in the proceedings. Last, I shall examine the final plea raised by BA-CA, alleging breach of the rights of the defence and of the duty to state reasons.

58.      Before embarking upon my analysis, I should like to make some preliminary observations in order to shed light on the legal framework in which the Court will examine the present appeals.

VII –  Preliminary observations

59.      These observations relate, first, to the jurisdiction of the Court in an appeal and, second, to the legal and factual context of the investigation and imposition of penalties for anti-competitive behaviour.

A –    The extent of the Court’s jurisdiction in the present appeals

60.      In an appeal, the Court’s task is limited to examining whether the Court of First Instance made an error of law in the exercise of its power of review.

61.      Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is to be limited to points of law and must lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before the Court of First Instance or infringement of Community law by that Court. Furthermore, pursuant to Article 112(1)(c) of the Rules of Procedure, an appeal must contain the pleas in law and legal arguments relied on.

62.      On the basis of those provisions, the Court has defined the conditions of the admissibility of appeals against judgments of the Court of First Instance.

63.      First, the Court considers that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. (13)

64.      Second, the Court considers that an appellant cannot put forward for the first time before the Court of Justice pleas in law and arguments which it has not raised before the Court of First Instance. That would amount to authorising a party to bring before the Court of Justice a case of wider ambit than that which came before the Court of First Instance, when the jurisdiction of the Court of Justice in appeals is limited. (14)

65.      Third, the Court holds that an appeal is not admissible if the appellant simply repeats or reproduces verbatim the pleas in law and arguments put forward before the Court of First Instance and if he does not explain or identify the error of law allegedly vitiating the judgment. In that case, the Court considers that the appeal amounts in reality to no more than a request enabling the appellant to secure a re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. (15) By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, as the Court has held, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. (16)

66.      It also follows from the abovementioned provisions that the appeal can be based only on pleas alleging infringement of rules of law. Pleas relating to the assessment of the facts are in principle held to be inadmissible, except in two situations expressly identified in the case-law.

67.      In principle, the Court of First Instance alone has jurisdiction to find and evaluate the facts. It is also for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it, provided that the evidence which it has accepted in support of those facts has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed. (17)

68.      In that case, the Court of Justice has jurisdiction under Article 225 EC solely to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. (18)

69.      Thus, in the context, in particular, of the implementation of Article 81 EC and Article 15 of Regulation No 17, review by the Court of Justice has a double purpose. First, the Court must examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of the conduct of the undertaking in light of Article 81 EC and Article 15 of Regulation No 17. Second, it must consider whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced. (19) On the other hand, it is not for the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance, which, in the exercise of its unlimited jurisdiction, rules on the amount of fines imposed on undertakings. (20)

70.      As I have stated, there are two cases in which the Court may entertain complaints relating to the finding and the assessment of the facts. (21)

71.      The first case is where the appellant contends that the Court of First Instance made findings which the documents in the file show to be substantially incorrect.

72.      The second case is where the appellant claims that the Court of First Instance distorted the clear sense of the evidence before it. In that circumstance, the Court, which in principle has no jurisdiction to examine the evidence which the Court of First Instance accepted in support of the facts, may review the evidence. The appellant must then indicate precisely which evidence was distorted by the Court of First Instance and demonstrate the errors in analysis which in its view led the Court of First Instance to distort its clear meaning. According to consistent case-law, such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence or to have recourse to new evidence. (22)

73.      It is on the basis of those considerations that I shall examine the admissibility of the pleas and arguments relied on by the appellants in the present appeals.

B –    The legal and factual context of the review of anti-competitive practices and agreements (23)

74.      Participation by an undertaking in anti-competitive practices and agreements constitutes an economic infringement designed to maximise profits, generally by means of a voluntary limitation of supply, an artificial division of the market and an artificial increase in prices. The effect of such practices or such agreements is to restrict free competition and to prevent the attainment of the common market, notably by impeding intra-Community trade. This type of horizontal cartel agreement affecting interest rates, that is to say, ultimately, the prices paid by final consumers, is one of the most serious anti-competitive practices. (24) Agreements relating to credit interest and debt interest rates, like those at issue in the present cases, are one of the means whereby credit institutions can compete by offering higher interest rates for certain savings accounts or lower interest rates for loans. However, the existence of cartels between the credit institutions for the purpose of fixing those interest rates eliminates competition, which directly impacts on consumers, since they are deprived of their scope for manoeuvre and are no longer able to benefit from those advantages.

75.      The purpose of the powers conferred on the Commission by Regulation No 17 is to allow it to carry out its task, entrusted to it by Article 81 EC, of ensuring compliance with the competition rules in the common market. As may be seen from the preceding point, it is consistent with the general interest to avoid anti-competitive practices and agreements, to uncover them and also to penalise them.

76.      Since the fines which undertakings may incur are a matter of common knowledge, it is normal for the activities which anti-competitive agreements entail to be conducted in a clandestine manner, for meetings to be held in secret, most frequently in a non-member State, and for the relevant documentation to be reduced to a minimum.

77.      Even if the Commission discovers documents explicitly showing unlawful contact between operators, such as the minutes of a meeting, those documents will normally be only fragmentary and dispersed, so that it is often necessary to reconstruct certain details by inference.

78.      In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, considered together, may, in the absence of any other coherent explanation, constitute evidence of a breach of the competition rules.

79.      Furthermore, as happened in the present cases, the Commission may be faced with difficulties inherent in the complex structures of certain operators, with restructuring and with changes in the legal personality of the undertakings.

80.      It must be borne in mind, in that context, that Article 81 EC refers to the activities of undertakings. For the purpose of the application of that provision, the fact that an undertaking has changed its legal form and its name does not necessarily have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor, when, from an economic point of view, the two undertakings are identical. (25)

81.      A statement of objections must, however, specify unequivocally the legal person on whom fines may be imposed and be addressed to that person. (26)

82.      In order to preserve the practical effect of the power of investigation conferred on it by Article 11(1) and (5) of Regulation No 17, the Commission is entitled, if necessary by adopting a decision, to require an undertaking to provide all the necessary information relating to facts of which it may be aware and to provide it, where necessary, with the documents relating to those facts which it possesses, even if they may serve to establish, as against that undertaking or as against a different undertaking, the existence of anti-competitive behaviour.

83.      Regulation No 17 imposes on an undertaking under investigation an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation. (27)

84.      In carrying out its task, the Commission must, however, ensure that the rights of the defence are not impaired during preliminary inquiry procedures which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable. (28)

85.      The rights of the defence are fundamental rights forming an integral part of the general principles of law whose observance the Court ensures, drawing inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties on which the Member States have collaborated or to which they are signatories, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. (29)

86.      Thus, the Commission, when issuing a request for information, may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it incumbent on the Commission to prove. (30)

87.      Respect for the rights of the defence also requires that the undertaking concerned must have been afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the EC Treaty. (31)

88.      In that sense, Regulation No 17 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. However, that information may be given in summary form and the decision is not necessarily required to be a replica of the statement of objections, (32) since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. (33) For that reason, the Commission may and must take account of the factors emerging from the administrative procedure in order, inter alia, to abandon such objections as have been shown to be unfounded. (34)

89.      It is in light of those considerations that the various pleas raised by the appellants in the present appeals must be examined.

VIII –  The pleas alleging infringement of Article 81(1) EC

90.      In substance, the appellants have raised two pleas in law, alleging, first, incorrect assessment of the condition referred to in Article 81(1) EC that there must be an effect on trade between Member States and, second, incorrect imputation of liability for the infringement.

A –    First plea, alleging incorrect assessment of the condition that there must be an effect on trade between Member States

91.      In the words of Article 81(1) EC, ‘[t]he following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.

92.      The conditions of the applicability of Article 81(1) EC are therefore, first, an effect on trade between Member States and, second, the restriction of competition. (35)

93.      The criterion of an effect on trade between Member States makes it possible to define the boundary between the areas respectively covered by Community law and by the law of the Member States. (36)

94.      The Court has adjudicated on numerous occasions on the principles governing the assessment of that criterion.

95.      The Court considers, according to a settled formula, that for an agreement or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. (37) That may be the case where the agreement partitions the national market, diverts trade patterns from their normal course or alters the structure of competition in the common market. (38)

96.      According to the Court, an effect on intra-Community trade is therefore the result of a combination of several factors which, taken separately, are not necessarily decisive. (39)

97.      In that regard, the Court considers that it is not necessary to prove actual interference with trade and that proof of a potential effect is sufficient. (40)

98.      On the other hand, that interference must be appreciable. (41) The Commission must assess it taking into account, in particular, the position and size of the parties on the relevant product market. Thus, where an agreement affects the market only insignificantly, regard being had to the weak position of the persons concerned on the market in the products in question, it escapes the prohibition laid down in Article 81 EC even where it imposes absolute territorial protection. (42)

99.      Furthermore, as the Court of First Instance recalled at paragraph 164 of the judgment under appeal, it is of little importance that the influence of a cartel on trade is unfavourable, neutral or favourable.

100. It is by reference to those principles that the merits of the arguments put forward by the appellants must now be evaluated.

101. In the context of their respective first pleas, Erste, RZB and ÖVAG submit that the Court of First Instance made various errors of law in considering that the ‘Lombard Club’ agreements are capable of affecting trade between Member States within the meaning of Article 81(1) EC. Subject to certain specific aspects connected with their individual situations, their arguments amount, essentially, to challenging the criteria on which the Court of First Instance relied for the purposes of its assessment.

102. I have arranged the various complaints raised by the appellants into four parts.

103. In support of the first part, RZB and ÖVAG maintain that the Court of First Instance erred in law in holding that a cartel which covers the territory of a Member State is capable of affecting intra-Community trade. In support of the second part, ÖVAG takes issue with the Court of First Instance for having carried out a global examination of the cross-border effects of the cartel. Next, in the context of the third part, Erste submits that the Court of First Instance did not demonstrate that the cartel could have had an appreciable effect on intra-Community trade. Last, in support of the fourth part, ÖVAG takes issue with the Court of First Instance for having failed to analyse the actual effects of the cartel on the market.

1.      First part of the plea, alleging incorrect assessment of the ability of a cartel covering the entire national territory to have an appreciable effect on trade between Member States

a)      Arguments of the parties

104. RZB and ÖVAG contend that the Court of First Instance erred in law in considering, at paragraph 181 of the judgment under appeal, that ‘there is … a strong presumption [(43)] that a practice restrictive of competition applied throughout the territory of a Member State is liable to contribute to the compartmentalisation of the markets and to affect intra-Community trade’.

105. First, RZB maintains that the Court of First Instance simplified the interpretation of the condition of an effect on trade between Member States by qualifying the significance of the criterion of the effect of a partitioning of the markets, whereas ÖVAG claims that the Court of First Instance applied a broad interpretation of Article 81(1) EC.

106. Second, RZB submits that the ability to affect trade between Member States not only presupposes territorial cover but also requires proof that a cartel has the effect of partitioning the market. That proof is necessary. The Court of First Instance therefore failed to have regard to the Community case-law and, in particular, at paragraphs 182 to 184 of the judgment under appeal, the scope of Bagnasco and Others, by asserting that the mere fact that the committees covered the entire Austrian territory was sufficient to support the conclusion that they had an effect on intra-Community trade. In that regard, the appellant emphasises that the services to which the bank meetings related were provided, virtually without exception, at local level and that no foreign bank participated in the committees. Furthermore, as regards the burden of proof, the Court of First Instance wrongly considered that the Commission was not required to prove that a cartel which covers the entire territory of a Member State has the effect of partitioning the market. The Court of First Instance also erred in law at paragraphs 181 and 186 of the judgment under appeal by placing the burden of proof on the undertakings.

107. ÖVAG further submits that the undertakings do not have the means to demonstrate that the cartel did not have the effect of partitioning the market. Furthermore, the fact that the cartel may extend to the entire national territory is not a sufficient criterion and the Court of First Instance ought also to have taken other criteria into account, such as the specific features of the banking sector.

108. In addition, ÖVAG claims that the reasoning of the Court of First Instance was contradictory and insufficient. At paragraph 164 of the judgment under appeal, the Court of First Instance considered that the effect of partitioning the markets is not a strong indication that there is an effect on trade between Member States, whereas at paragraph 181 of that judgment it asserted, on the contrary, that there is a close link between the effect of a practice of compartmentalisation of the markets and the liability of that practice to affect cross-border trade.

b)      Assessment

109. I consider that the various complaints raised by the appellants must be rejected.

110. To my mind, a cartel, such as that at issue, organised nationally between the main Austrian banks, having as its object collusion on bank prices and charges, is by its very nature capable of affecting trade between Member States within the meaning of Article 81(1) EC.

111. As regards, first, the finding of the Court of First Instance at paragraph 181 of the judgment under appeal that there is a presumption that an agreement applied throughout the territory of a Member State is liable to contribute to compartmentalisation of the markets and to affect intra-Community trade, I believe that that reasoning is correct, although the word ‘presumption’ is not in my view appropriate.

112. In effect, the Court of Justice takes the view that the fact that an agreement is concluded between undertakings established in a single Member State and relates only to products or services marketed in that State does not mean that trade within the internal market cannot be affected. (44) According to the Court, such an agreement would by its very nature have the effect of reinforcing the compartmentalisation of markets on a national basis and protecting domestic production, which impedes the economic interpenetration which the EC Treaty is designed to bring about and a fortiori affects trade between Member States. (45)

113. The effect on intra-Community trade of a national cartel is thus the consequence of the very nature of the infringement and not of any ‘presumption’ laid down by the Court.

114. Consequently, and in spite of the use of that word, it appears to me that the reasoning of the Court of First Instance set out at paragraph 181 of the judgment under appeal is not vitiated by any error of law, contrary to RZB’s and ÖVAG’s contention.

115. In those circumstances, I am unable to support the argument that the Court of First Instance thereby applied a broad interpretation of Article 81(1) EC or a simplified interpretation of the condition relating to the effect on trade between Member States.

116. I therefore propose that the Court should reject the arguments raised in that regard by RZB and ÖVAG.

117. Furthermore, and contrary to ÖVAG’s contention, I consider that that reasoning is not inconsistent with what the Court of First Instance stated at paragraph 164 of the judgment under appeal. At that paragraph, the Court of First Instance merely observed that the effects of partitioning of the markets were not the only effects that the Commission could take into consideration in concluding that a cartel is capable of affecting trade between Member States.

118. As regards, second, the existence of an effect of partitioning of the domestic market, I am of the view that, contrary to RZB’s and ÖVAG’s contention, the Court of First Instance demonstrated, to the requisite legal standard and taking account of the special characteristics of the banking sector, that, beyond the simple territorial coverage of the cartel, the cartel was likely to result in the partitioning of the Austrian market.

119. In effect, after stating, at paragraph 179 of the judgment under appeal, that the cartel found by the Commission covered the whole of the national territory, the Court of First Instance observed at paragraph 183 of that judgment that the concerted practices within the ‘Lombard network’ involved almost all the credit institutions in Austria and also a wide range of banking products and services, in such a way that ‘they were capable of changing the conditions of competition throughout that Member State’. The Court of First Instance further observed, at paragraphs 184 and 185 of the judgment, that it could not be concluded that the cartel had no cross-border effect, since the network might have contributed to the retention of structures in the Austrian banking market and, consequently, to the maintenance of the barriers to access to the market. Those observations must also be assessed in light of the analysis of the Court of First Instance set out at paragraphs 111 to 121 of the judgment under appeal, in which that Court illustrated, on the basis of documents the examination of which is not called in question by the appellants, the objective pursued by each of the committees.

120. The maintenance of barriers to market entry to which the Court of First Instance referred is in my view sufficient to demonstrate that there is a danger of partitioning of the Austrian market.

121. First, beyond the structural barriers, attributable in particular to the network effects created by the cartel, the appellants set up and reinforced strategic barriers by organising collusion both at national level and, in certain regions, at local level, in the banking sector, in which foreign banks did not participate, as, moreover, RZB acknowledges in its appeal. (46)

122. Second, the nature and detailed character of the information exchanged between the banks, which the Court of First Instance highlighted at paragraphs 111 to 121 of the judgment under appeal, create, in what is already a highly concentrated market, a structure of transparency which prevents any hidden competition and reinforces the barriers to market access by non-member undertakings. (47)

123. Third, the banking services in question relate to economic activities which may have a significant influence on trade between Member States and the provision of this type of services is, to my mind, a decisive factor for the entry to the financial market of a Member State of banks from other Member States. By fixing particularly low debit interest rates, by reducing credit rates or fixing particularly high savings rates, the appellants succeeded in attracting customers by a policy of concerted decreases and increases in prices and were therefore able to dissuade foreign banks, which were incapable of aligning themselves on such rates, from entering the Austrian market or, in all cases, made their penetration of the national market more difficult or less timely. (48)

124. Fourth, I do not consider that RZB’s argument concerning the purely national nature of certain banking services covered by the concerted practice is relevant.

125. The globalisation of banking activities, the use of new technologies in the provision of financial services and the establishment of the single banking market have facilitated the achievement of banking services between Member States. (49) I can thus imagine a German customer approaching a bank established in Austria in order to conclude with that bank a contract relating to the opening of current-account credit facilities if the conditions offered by that bank appear to that customer to be more favourable than the conditions applied by the banks established in Germany. In the same way, a bank from another Member State may wish to provide banking services in Austria from its State of origin or through subsidiaries or branches which it would open in Austria. The full attainment of the internal market, through freedom of establishment, (50) freedom to provide services and free movement of capital, (51) and also in the context of economic and monetary policy, favours, in my view, the communitarisation of all financial services. In such a context, I therefore find it difficult to accept that concerted practices relating to purely national banking services were incapable of affecting trade between Member States.

126. Consequently, I consider that the Court of First Instance did not err in law when it held at paragraph 186 of the judgment under appeal that the agreement in question had been capable of having the effect of compartmentalising the market and had been liable to affect inter-State trade.

127. Nor is the Court of First Instance to be criticised for having considered, at the same paragraph, that the appellants had not rebutted the ‘presumption’ that the cartel had been able to have such effects.

128. Contrary to RZB’s contention, the Court of First Instance did not reverse the burden of proof and place it on the appellants. In that regard, it must be borne in mind that, as regards the taking of evidence of an infringement of Article 81(1) EC, it is incumbent on the Commission to prove the infringements found by it, and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. (52) By contrast, it is for the undertaking against which the Commission has brought proceedings to defend itself in the adversarial procedure and to demonstrate that the conditions laid down in Article 81(1) EC are not satisfied. In fact, as the Court of First Instance observed at paragraph 154 of the judgment under appeal, the Commission assessed the capability of the ‘Lombard network’ to affect trade between Member States by considering, inter alia, that the cartel modified the conditions of competition throughout Austria and was liable to influence decisions of foreign banks to enter the market. The Court of First Instance thus found solely that the appellants had not succeeded in demonstrating that the Commission’s finding was incorrect.

129. In so far as the Court of First Instance did not in my view reverse the burden of proof, I consider that ÖVAG’s argument that the appellants did not have the means to demonstrate that there was no partitioning of the market is irrelevant.

130. In light of all of those considerations, I believe that the Court of First Instance correctly assessed the capability of the cartel at issue to affect intra-Community trade and provided a sufficient statement of reasons in that regard.

131. I therefore propose that the Court should reject the first part of this first plea as unfounded.

2.      Second part of the plea, alleging incorrect assessment by the Court of First Instance owing to an overall examination of the cross-border effects of the cartel

a)      Arguments of the parties

132. ÖVAG maintains that the Court of First Instance erred in law in holding that the Commission was entitled to carry out an overall examination of the cross-border effects of the various banking committees. In ÖVAG’s submission, the capacity of the various committees to affect trade between Member States ought to have been assessed separately for each of them.

133. In support of that claim, it puts forward two complaints.

134. The first complaint alleges incorrect application and incorrect assessment of the Community case-law.

135. First, the Court of First Instance erred in law in not examining in isolation, and in accordance with VGB and Others v Commission, (53) the effects on intra-Community trade of the committees which were concerned with separate activities. Furthermore, and on the assumption that the various committees did constitute a single infringement, ÖVAG submits that it cannot be concluded that there was a direct link between the agreements negotiated within the framework of those committees, contrary to the finding made by the Court of First Instance at paragraph 170 of the judgment under appeal.

136. Second, the Court of First Instance incorrectly assessed the Court’s case-law deriving from Bagnasco and Others, at paragraph 171 of the judgment under appeal. In that case, the Court carried out a separate examination of the conditions relating to two separate banking operations, although they formed part of standard banking conditions and related to the same banking service.

137. The second complaint alleges incorrect definition of the relevant product market.

138. First, ÖVAG criticises the reasoning of the Court of First Instance set out at paragraph 172 of the judgment under appeal, which stated that ‘the definition of the relevant market differs according to whether Article 81 EC or Article 82 EC is to be applied’. That reasoning is unsubstantiated and is also incorrect. The appellant maintains, in effect, that the definition of the relevant market must be made according to the same criteria irrespective of which of the two procedures applies. Furthermore, in the appellant’s submission, the complaint against the definition of the relevant market applied by the Commission assumes a legal dimension independent of the complaints relating to the effect on trade between Member States in the context of the application of Article 81 EC. By that argument, ÖVAG seeks to show that the Commission and the Court of First Instance ought to have assessed the effect on trade of the agreements concluded within the various committees on the basis of a narrower definition of the relevant markets.

139. Second, ÖVAG points to a contradiction between (i) paragraph 174 of the judgment under appeal, where the Court of First Instance recognised that ‘the various banking services covered by the agreements cannot be substituted for each other’, and (ii) paragraph 175 of the judgment, where the Court asserted that ‘the Commission was not required to examine separately the markets for the various banking products covered by the committees’.

140. Last, ÖVAG disputes the merits of the analogy drawn by the Court of First Instance at paragraph 175 of the judgment under appeal with its judgment in SPO and Others v Commission, (54) in so far as, in that case, it was the applicant that provided the definition of the relevant market, which was accepted by the Commission.

b)      Assessment

i)      First complaint, alleging incorrect application and incorrect assessment of the Community case-law

–       Concerning VGB and Others v Commission

141. In essence, the appellants criticise the Court of First Instance for not having examined in isolation, and in accordance with VGB and Others v Commission, the effects on intra-Community trade of the committees which were concerned with separate activities.

142. I consider that this complaint is unfounded.

143. It is settled case-law that the effect on intra-Community trade must be assessed on the basis of a set of objective factors of law or fact which, taken separately, are not necessarily decisive. (55) The Court takes into consideration the particular features of the agreement, namely its nature, the products covered by the agreement and the position and importance on the market of the parties to the agreement. (56) It also takes into account the economic and legal context of the agreement, in which it might combine with others to have a cumulative effect on competition. (57)

144. In Windsurfing International v Commission, (58) the Court observed that Article 81(1) EC does not require that each individual clause in an agreement should be capable of affecting intra-Community trade. The Court held that Community competition law applies to agreements between undertakings which may affect trade between Member States. It is only where the agreement as a whole is capable of affecting trade that it is necessary to examine which are the clauses of the agreement which have as their object or effect the restriction or distortion of competition. (59)

145. It was on the basis of that case-law that the Court of First Instance determined the case giving rise to the judgment in VGB and Others v Commission. In that case, the Court of First Instance was requested to adjudicate on the compatibility with Article 81(1) EC of two types of agreements relating to the supply of floricultural products concluded by a cooperative whose members were Netherlands flower growers.

146. The first type of agreements were trade agreements concluded between the cooperative and dealers established within the cooperative with a view to the export of Netherlands floricultural products. Those agreements were concluded on the basis of rules drawn up by the cooperative and fixed the rights and obligations of the tenant with respect to the display and sale of cut flowers in the cooperative’s premises. The agreements provided, in particular, for payment of levies, and prescribed purchasing obligations. In the decision in question, the Commission considered that the agreements formed part of a body of similar decisions and agreements concerning the supply of floricultural products which, taken together, restricted competition, contrary to Article 81(1) EC. Those agreements made it more difficult for competitors from other Member States to penetrate the Netherlands national market. In VGB and Others v Commission, the Court of First Instance confirmed the Commission’s approach and held, on the basis of Windsurfing International v Commission, that, since the trade agreements formed an integral part of the rules drawn up by the cooperative, it was of no importance whether or not, in isolation, they affected trade between Member States to a sufficient extent.

147. The second type of agreements, namely the ‘Cultra agreements’, covered five separate exclusive purchasing agreements concluded between the cooperative and five Netherlands wholesalers established within the cooperative. Those wholesalers undertook to buy, exclusively from the cooperative, products originating in the Netherlands for resale to small retailers, which were excluded from the auction sales, on a ‘cash and carry’ basis. The Court of First Instance considered that those agreements had no direct link with the other aspects of the cooperative’s rules. They did not constitute an essential part of those rules on auction sales or direct supplies to dealers, in particular with a view to export of the products concerned, but related rather to a supplementary and separate business, namely the resale of the cooperative’s products to retailers by the ‘cash and carry’ method. It was in that context, and after taking account of the particular nature of those agreements, that the Court considered that it must assess their influence on intra-Community trade in isolation, and not within the framework of the rules of the cooperative taken as a whole.

148. It is in light of those elements that the Court of First Instance correctly observed, at paragraph 168 of the judgment under appeal, that ‘the effect on trade between Member States of agreements between which a direct link exists and which form an integral part of a whole must be examined together, whereas agreements between which there is no direct link and which concern separate activities must be examined separately’. That conclusion is perfectly consistent with the case-law cited above.

149. The question is therefore whether, as in the case of the ‘Cultra agreements’, the Court of First Instance was required to examine the effects on trade of the concerted practices within the specific committees of the ‘Lombard network’.

150. To my mind it was not.

151. The concerted practices within the technical or specialist committees of the ‘Lombard network’ actually concerned specific banking products and transactions. None the less, and unlike the ‘Cultra agreements’ referred to in VGB and Others v Commission, those committees formed part of a global agreement, which involved almost all the Austrian credit institutions and extended over several years and also over the entire range of banking products and services offered in Austria. As the Court of First Instance acknowledged at paragraphs 111 to 125 of the judgment under appeal, those concerted practices formed part of a single infringement, and that, to my mind, is the decisive factor. Those agreements formed part of an overall plan, that is to say, the ‘Lombard network’, characterised by a series of efforts that pursued a single economic goal, namely the elimination of competition in the banking services sector. ÖVAG does not dispute that. The committees were very closely linked with each other as regards both their content and their organisation, and it was the ‘Lombard Club’ that took the fundamental decisions, prepared by those committees, and settled any disciplinary problems with respect to compliance with the agreements.

152. In such a case, where the cartel was characterised as a single infringement, it seems to me to be quite unreal and incoherent to subdivide that cartel according to the specific object of each of the committees for the purpose of assessing the effects which it might entail for intra-Community trade. In that situation, that assessment must to my mind be an overall assessment, regard being had to all the concerted practices that took place within the committees.

153. In those circumstances, I can only share the reasoning of the Court of First Instance set out at paragraph 170 of the judgment under appeal, according to which there exists between agreements forming part of a single infringement a link justifying and necessitating an overall examination of the capability of affecting intra-Community trade.

154. To my mind, the criticisms formulated in that regard by ÖVAG must therefore be rejected.

155. In light of the foregoing, I consider that the Court of First Instance did not err in law in its interpretation of VGB and Others v Commission.

–       Concerning Bagnasco and Others

156. ÖVAG maintains that the Court of First Instance, at paragraph 171 of the judgment under appeal, applied and interpreted Bagnasco and Others incorrectly.

157. In that case, the Court of Justice was requested to give a preliminary ruling on the compatibility with Article 81(1) EC of certain standard banking conditions which the Italian banking association imposed on its members when they entered into contracts relating to the opening of current-account credit facilities and to general guarantees. The first clause at issue allowed the banks, in contracts relating to the opening of current-account credit facilities, to change the interest rate at any time by reason of changes on the money market, and to do so by means of a notice displayed on their premises. The second clause concerned the details of the general guarantees which must be provided for the opening of current-account credit facilities. The Court examined each of those two clauses separately.

158. In its appeal, ÖVAG submits that the reason stated by the Court of First Instance for not following that case-law is incorrect. It maintains that the Court of First Instance considered that in Bagnasco and Others the question of an overall examination of the cross-border effects of the banking conditions had not arisen, since, for the first clause, the standard banking conditions did not have the object or effect of restricting competition, whereas the second clause concerning general guarantees was not liable to affect trade between Member States.

159. I consider that the reasons put forward by the Court of First Instance for declining to follow the case-law deriving from Bagnasco and Others are perfectly justified.

160. In effect, as I stated at point 92 of this Opinion, the criterion of an effect on trade between Member States is a condition of the applicability of Article 81(1) EC and a constituent element of the infringement referred to in that provision.

161. Consequently, if it is found that one of the two clauses is not capable of affecting intra-Community trade, then it does not fall within the scope of Article 81(1) EC and the question of an overall examination of the cross-border effects of the banking conditions does not therefore arise.

162. In those circumstances, it appears to me that the Court of First Instance did not err in law in its interpretation of Bagnasco and Others, and I propose, accordingly, that the Court should reject this complaint.

ii)    The incorrect, insufficient and contradictory nature of the Court of First Instance’s analysis relating to the definition of the relevant market

–       The way in which the Court of First Instance evaluated the complaints alleging incorrect definition of the relevant market

163. In its appeal, ÖVAG calls in question the way in which the Community judicature evaluated the complaints raised against the definition of the relevant market applied by the Commission for the purposes of the application of Article 81(1) EC.

164. ÖVAG refers, in particular, to paragraph 172 of the judgment under appeal. It criticises, first of all, the reasoning underlying the Court’s assertion that ‘the definition of the relevant market differs according to whether Article 81 EC or Article 82 EC is to be applied’. The appellant disputes, next, the Court’s analysis that ‘the objections to the definition of the market adopted by the Commission cannot be seen in isolation from those concerning the impact on trade between Member States and the impairing of competition’. ÖVAG maintains that that reasoning is unfounded and incorrect in law.

165. Although I subscribe in part to ÖVAG’s criticism, I consider that that complaint is ineffective, in so far as it cannot result in a finding that the judgment under appeal contains an illegality.

166. At paragraph 172 of the judgment under appeal, the Court of First Instance merely recalled, by way of preliminary observation, the Community case-law which the appellant rightly challenges. None the less, the reference to that case-law had no effect on the outcome of the reasoning of the Court of First Instance, since that Court did indeed examine, at paragraphs 173 to 175 of the judgment under appeal, ÖVAG’s challenge to the Commission’s definition of the relevant market.

167. I would none the less make a number of observations on the reasoning employed by the Court of First Instance at paragraph 172 of the judgment under appeal, since I share, in part, the reservations expressed by the appellant.

168. Although the Court of First Instance’s reasoning was based on its consistent case-law, (60) it seems to me that the definition of the relevant market has, on the contrary, the same role irrespective of whether the provision to be applied is Article 81 EC, which prohibits anti-competitive agreements, decisions and concerted practices, Article 82 EC, which prohibits abuse of a dominant position, or Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings. (61) The only things that change are the nature of the conduct examined by the Commission and the purpose served by defining the market.

169. In those three procedures, the definition of the relevant market makes it possible to identify and define the perimeter within which there is competition between undertakings in order to have a better understanding of the functioning of the market. That definition, whether by reference to products or to the geographic size of the relevant market, must make it possible to determine whether there are real competitors on that market capable of affecting the conduct of the undertakings concerned or of preventing them from acting independently of the pressure brought to bear by effective competition.

170. An appropriate definition of the relevant market is therefore a necessary precondition of any judgment concerning allegedly anti-competitive behaviour, whether in the context of Article 81 EC or Article 82 EC or that of Regulation No 4064/89. (62) The Commission, moreover, has set out the basic principles and the elements of assessment on which it relies in order to define the relevant market in a notice adopted on 9 December 1997. (63) In that notice, the Commission lays down a basic method and assessment criteria which are applicable without distinction to the three types of procedures.

171. On the other hand, as is apparent from the Notice on market definition, the Commission may adopt a subtle and pragmatic approach when applying those criteria and accord greater or lesser importance to them depending on the nature of the competition problem at issue, the characteristics of the products concerned and also the objectives which it pursues. (64) Thus, as the Commission observed at paragraph 25 of the Notice on market definition, the decision is taken on the basis of a number of different criteria and types of evidence, certain types of evidence being decisive in individual cases, depending on the characteristics and specificity of the industry or services that are being examined, whereas they may be of no importance in other cases.

172. The way in which the Commission defines the market will therefore depend on the nature of the competition problem at issue and the specificity of certain markets. In that sense, market definition is a tool which enables the Commission to exercise its control according to the object of Article 81 EC or Article 82 EC.

173. In the context of Article 82 EC, the Community judicature considers that the definition of the relevant market constitutes an essential precondition of the assessment of whether an undertaking has a dominant position, (65) which is necessary before the existence of an abuse can be examined.

174. In the context of Article 81(1) EC, on the other hand, the Community judicature considers that a prior definition of the relevant market is not required where the agreement at issue has in itself an anti-competitive object, that is to say, where the Commission was able to conclude correctly, without first defining the market, that the agreement at issue distorted competition and was liable to have an appreciable effect on trade between Member States. (66) The Community judicature is referring, in that case, to the most serious agreements expressly prohibited by Article 81(1)(a) to (e) EC. It is in that hypothesis, referred to at paragraph 172 of the judgment under appeal, that the Community judicature considers that the complaints alleging incorrect definition of the market are ineffective, and therein, in my view, lies the difference with the procedure followed in the context of Article 82 EC. (67)

175. Outside such a hypothesis, on the other hand, the Community judicature considers that the definition of the market is a necessary precondition to enable the Commission to determine whether the agreement has the object or the effect of restricting competition and whether it is liable to affect trade between Member States. (68)

176. Market definition makes it possible, inter alia, to obtain information on the nature of the relevant product and to determine the market shares of the undertakings concerned. First, that makes it possible to analyse the effects which an agreement has on competition. The Commission is then in a position to know whether competition is appreciably restricted or whether, on the contrary, the agreement may be exempted under Article 81(3)(b) EC or a regulation granting exemption by categories (69) or whether it constitutes an agreement of minor importance. (70) Second, that makes it possible to obtain information on the capacity of the agreement to affect trade between Member States.

177. It is to that extent that the Community judicature considers, as may be seen from paragraph 172 of the judgment under appeal, that the complaints alleging incorrect definition of the market do not have an ‘autonomous dimension’ by comparison with those relating to the impeding of competition and the effect on trade between Member States. (71) In other words, the arguments that the Commission made an error of assessment in the definition of the market are taken into consideration in the context of the examination of the arguments relating to the impeding of competition and the effect on trade between Member States.

–       The insufficient and contradictory nature of the reasoning

178. ÖVAG maintains that the judgment under appeal, and in particular paragraphs 174 and 175, is vitiated by insufficient and contradictory reasoning.

179. Whereas at paragraph 174 of the judgment under appeal the Court of First Instance recognised that the various banking services covered by the agreements cannot be substituted for each other, it accepted at paragraph 175 of that judgment that the Commission was not required to examine separately the markets for those various banking products.

180. I consider that this complaint is unfounded.

181. The Court of First Instance correctly explained the reasons why it was appropriate not to adopt a narrow definition of the market, based solely on the substitutability of the products concerned. As it correctly observed, such a definition would have been artificial in that sector of activities, since, first, most customers require a range of banking services from their banks and, second, competition between the banks is liable to relate to all of those services. It is true that, as ÖVAG observes in its appeal, a number of customers may approach another bank in order to obtain a more specific service, for example a loan. None the less, in most cases, each person has an account with a bank on the basis of which numerous services are offered, such as the issue of payment instruments (bank cards, withdrawals, transfers), enabling the customer to carry out transactions on his account (credit or debit) in return for the interest and fees applied by the bank. It is therefore clear, as the Court of First Instance observed, that a separate examination would not make it possible fully to appreciate the effects of the agreement in question.

182. As I stated at point 171 of this Opinion, the Commission may apply the criteria defined in the Notice on market definition, which include the substitutability of the products, subtly and pragmatically, and attribute greater or lesser importance to them according to the nature of the competition problem at issue, the specific characteristics of the services under examination and also the objectives which it pursues. (72)

183. In the present cases, and in light of the way in which that agreement was implemented, it is clear, to my mind, that a separate examination of the markets in the various banking products would not have made it possible fully to appreciate the extent and also the significance of the agreement and clearly would not have reflected reality.

184. Furthermore, regard being had to the size of the range of banking products and services covered by the ‘Lombard network’, it cannot be precluded, as the Court of First Instance observed, that the intra-Community effect may be indirect and that the market on which it is liable to be produced is not necessarily the same as the market for banking products or services on which the parties colluded. As regards, for example, the overall effective annual rate which each bank must fix when offering credit, that rate is calculated on the basis not only of the debit interest but also of the related costs, such as the costs associated with the administration of the file, insurance costs and those linked with the issue of a payment card.

185. In those circumstances, I consider that the Court of First Instance explained to the requisite legal standard its reasons for concluding that the Commission was not required to examine separately the markets for the various banking products covered by the committees in spite of the fact that the products in question were not substitutable for each other. In that context, I consider that the reasoning of the Court of First Instance set out at paragraphs 174 and 175 of the judgment under appeal is not open to criticism.

–       The incorrect reference to SPO and Others v Commission

186. ÖVAG disputes the merits of the analogy which the Court of First Instance drew at paragraph 175 of the judgment under appeal with SPO and Others v Commission, in view of the fact that in that case the Commission adopted the definition of the market proposed by the applicant.

187. To my mind, that complaint is wholly irrelevant and I propose, accordingly, that the Court should reject it.

188. In light of the foregoing, I am of the view that the Court of First Instance, in holding that the Commission could carry out an overall analysis of the cross-border effect of the banking committees, did not err in law and set out its reasoning to the requisite standard and without contradiction.

189. I therefore propose that the Court should reject the second part of this first plea as unfounded.

3.      Third part of the plea, alleging failure to show that the cartel had an appreciable effect on intra-Community trade

a)      Arguments of the parties

190. In the context of its first plea, alleging infringement of Article 81(1) EC, Erste observes that an effect on trade between Member States is not the only condition of the application of that provision. As the Court of First Instance recalled at paragraph 167 of the judgment under appeal, it is also necessary to demonstrate that the potential effect of the cartel on trade is appreciable. However, even on the assumption that the Court of First Instance was correct to conclude that the ‘Lombard network’ had the potential capability to affect intra-Community trade, it did not demonstrate that that effect could be appreciable. In the appellant’s submission, if the agreement entered into between the banks had cross-border effects, those effects were extremely limited.

b)      Assessment

191. The criterion of an effect on trade between Member States incorporates a quantitative element which limits the applicability of Community law only to agreements which are capable of having appreciable effects. When those agreements have only an insignificant effect on trade, they are not caught by the prohibition referred to in Article 81(1) EC.

192. In its appeal, Erste takes issue with the Court of First Instance for not having shown that the ‘Lombard network’ was capable of having an appreciable effect on intra-Community trade.

193. Although it may be regrettable that the Court of First Instance did not expressly mention that the effect on trade was appreciable, I none the less consider that that is very clear from the nature of the agreement at issue and from the findings of the Court of First Instance set out at paragraphs 111 to 121, 179 and 183 to 185 of the judgment under appeal.

194. According to consistent case-law, and as follows from point 97 of this Opinion, Article 81(1) EC does not require that the arrangements referred to in that provision have appreciably affected trade between Member States (proof of which would, according to the Court, be difficult to establish), but requires only that it be established that those arrangements are capable of having that effect. (73) Thus, in Miller International Schallplatten v Commission the Court held that it was sufficient that the Commission had established, on the basis of certain facts, that there was a danger (74) that trade between Member States would be appreciably affected. (75)

195. Furthermore, as I have stated, the impact on intra-Community trade may be the result of a combination of several factors. (76) The appreciable nature of that impact must be assessed in light of the circumstances of each case and various elements must be taken into account, such as the economic and legal context of the arrangement, (77) its nature, the characteristics of the products concerned and, last, the position and also the importance which the undertakings concerned occupy on the relevant market.

196. In the judgment under appeal, the Court of First Instance stated on numerous occasions that the agreement not only involved virtually all the Austrian credit institutions (including the largest banks), but also covered a very wide range of banking products and services, in particular deposits and credits, and extended throughout the national territory, and was thus likely to alter the conditions of competition in the whole of the Member State. In addition to what I have already observed at points 118 to 126 of this Opinion, and particularly in light of the nature of that agreement, I consider that those findings suffice to demonstrate that the agreement was capable of having a significant effect on trade between Member States.

197. Consequently, I consider that the criticism formulated by Erste is irrelevant and I propose that the Court should reject the third part of the first plea.

4.      Fourth part of the plea, alleging failure to analyse the actual effects of the cartel on the market

a)      Arguments of the parties

198. ÖVAG takes issue with the Court of First Instance for not having carried out an analysis of the actual effects of the cartel on the market, even though in the cases before it ‘a past infringement [had been] examined after the event’. ÖVAG submits that the case-law cited by the Court of First Instance at paragraph 166 of the judgment under appeal, according to which the fact that a cartel has a potential effect on trade between Member States is sufficient for it to fall within the scope of Article 81 EC, is not applicable in the present circumstances. The Court of First Instance therefore erred in law by holding that the proof of a potential effect of the cartel was sufficient in the present cases, when it was perfectly possible to examine the existence of the alleged effects. If the Court of First Instance had carried out that examination, it would then have found that the agreements had had no impact on cross-border trade.

b)      Assessment

199. I consider that this complaint must be rejected.

200. It follows from consistent case-law to which the Court of First Instance referred at paragraph 166 of the judgment under appeal that Article 81(1) EC does not require that the restriction of competition at issue have actually affected trade between Member States, but requires solely that it be established that the agreements are capable of having that effect. (78)

201. That case-law draws no distinction between a situation in which the compatibility of the agreement is examined after the event, where the agreement has already been entered into or implemented, and one in which it is examined before the event, namely where the agreement has been notified to the Commission with a view to securing an exemption.

202. To accept ÖVAG’s argument would amount to introducing a difference in approach and control according to whether the agreement was examined before or after the event. In fact, such an approach is not envisaged by the case-law.

203. In those circumstances, the Court of First Instance cannot be criticised for having erred in law.

204. It follows from those considerations that the Court of First Instance, to my mind, correctly assessed the capability of the ‘Lombard network’ to affect trade between Member States and correctly stated the reasons for its analysis.

205. The Court of First Instance and the Commission, in Article 1 of the decision at issue, were thus entitled to consider that the agreements entered into by the appellants constituted an infringement contrary to Article 81(1) EC.

206. I therefore propose that the Court should reject the first plea as unfounded.

B –    Second plea, alleging incorrect imputation of liability for the infringement

207. This plea seeks to challenge the determination of the addressees of the decision at issue referred to in Article 1 thereof.

1.      Arguments of the parties

208. Erste maintains that the Court of First Instance made various errors of law and of assessment in holding, at paragraph 327 et seq. of the judgment under appeal, that it must answer for the infringement committed by GiroCredit Bank der österreichischen Sparkassen AG (‘GiroCredit’) during the period preceding its acquisition.

209. First, Erste claims that the Court of First Instance did not properly assess the economic and legal links between GiroCredit and the Bank Austria group. In that regard, Erste recalls that until the majority of its capital was acquired on 20 May 1997, GiroCredit was mainly owned by the Bank Austria group, which itself participated in the ‘Lombard Club’. That group controlled GiroCredit not only through its majority holding in GiroCredit’s capital, but also through the appointment of members of the supervisory board and the management board and the fact that the top management posts were occupied by employees from Bank Austria AG. Consequently, GiroCredit’s conduct ought to have been imputed for that period to BA-CA. Furthermore, the Court of First Instance’s finding that GiroCredit was the legal person responsible for the operation of GiroCredit’s banking business is wrong in law, since that company was also controlled and directed by the Bank Austria group.

210. Second, Erste maintains that the Court of First Instance also erred in law at paragraphs 328 to 336 of the judgment under appeal in considering that the Commission could choose to penalise either the subsidiary that had participated in the infringement or the parent company that had controlled it during that period, even in the case of an economic succession.

211. The Commission contends that a clear distinction must be drawn between the question of the determination of the legal person responsible for the undertaking which participated in the infringement and the conditions in which the conduct of a subsidiary with separate legal personality may be attributed to the parent company. The Commission submits that its approach does not entail any injustice in so far as Erste itself participated in the infringement.

2.      Assessment

212. By this plea, Erste claims that the Court of First Instance erred in law in considering that the Commission was entitled to attribute to it liability for the infringement committed by GiroCredit before its acquisition, when at the time the infringement was committed GiroCredit belonged to the Bank Austria group.

213. More specifically, the Court is requested to examine whether the fact that GiroCredit was controlled by a different parent company at the time of committing the infringement precludes the possibility for the Commission to attribute to Erste, the new parent company, the unlawful conduct of that subsidiary.

214. I do not consider that that is so.

215. It is appropriate, first of all, to recall the principles which the Court has established with respect to the attributability of infringements where an undertaking has been taken over and in the context of a group of companies.

216. It is apparent from consistent case-law that Community competition law refers to the activities of ‘undertakings’ and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. (79)

217. The Court considers, moreover, that responsibility for committing an infringement of Article 81(1) EC is personal in nature, owing not only to the nature of the infringement in question but also to the nature and degree of severity of the ensuing penalties. (80)

218. Consequently, the Court holds that it falls to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the time of the decision finding the infringement, another person had assumed responsibility for operating the undertaking. (81) While the legal person that directed the undertaking at the time of the infringement exists, responsibility for the undertaking’s infringement follows that legal person, even though the assets and personnel which contributed to the commission of the infringement have been taken over by a third party after the period of the infringement. (82)

219. On the other hand, where an entity which has committed an infringement of the competition rules ceases to exist in law or in economic terms after committing the infringement, the Court applies the ‘economic continuity’ test. (83)

220. The application of that test makes it possible to prevent undertakings from escaping penalties imposed by the Commission by simply changing their identity through restructurings, sales or other legal or organisational changes and thus to ensure the effective application of the competition rules. (84)

221. In those circumstances, the Community judicature considers that where, between the infringement and the time when the undertaking in question must answer for it, the person responsible for the operation of that undertaking has ceased in law to exist, it is necessary, first, to establish the combination of physical and human elements which contributed to the infringement and then to identify the person who has become responsible for their operation. (85)

222. As regards, more particularly, the attributability of infringements in the context of a group of companies, the Court considers that the fact that a subsidiary may have separate legal personality does not suffice to preclude the possibility that its conduct will be attributed to the parent company, in particular where the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company. (86)

223. After outlining those elements, I shall now examine the admissibility and the merits of the complaints raised by the appellant.

224. In support of its first complaint, the appellant calls in question, essentially, the factual assessments of the Court of First Instance. It disputes the assertions set out at paragraph 327 of the judgment under appeal that GiroCredit was, at the time of commission of the infringement, the legal person responsible for the operation of the banking business. The appellant submits, in that regard, a number of elements seeking to demonstrate that the conditions in which responsibility for the conduct of a subsidiary may be attributed to the parent company were satisfied in the case of Bank Austria AG and GiroCredit.

225. I consider that those arguments are inadmissible in light of the principles set out at points 65 to 72 of this Opinion. As regards the assertions of the Court of First Instance set out at paragraph 327 of the judgment under appeal, they are findings of fact which cannot be discussed in the context of an appeal. As regards, next, the elements which the appellant submits in support of its case, they amount to nothing more than the reproduction verbatim of the evidence which it has already put forward before the Court of First Instance. By this first complaint, the appellant seeks, in reality, to secure a simple re-examination of the application submitted before the Court of First Instance and a new assessment of the facts, which is outside the jurisdiction of the Court of Justice in an appeal.

226. In support of its second complaint, the appellant claims, in essence, that the Court of First Instance erred in law in holding that responsibility for GiroCredit’s conduct before it was transferred must be imputed to the new parent company, namely Erste, and not the former parent company, that is to say, Bank Austria AG.

227. I consider that this complaint is unfounded for the following reasons.

228. In light of the principles established by the Court, GiroCredit was responsible for the infringements which it committed in its individual capacity on the market. In spite of the fact that the Bank Austria group held a majority of shares, (87) it follows from recital 479 to the decision at issue that that subsidiary’s business policy was not influenced by its parent company, or indeed determined by a third undertaking. It also follows from recital 479 that GiroCredit acted independently, on its own responsibility and without instructions, in its own interests. In light of the case-law cited above, the former parent company was not therefore required to answer for the conduct of its subsidiary.

229. By reason of its acquisition by Erste, the legal person responsible for the operation of GiroCredit ceased to exist in law and, in application of the economic continuity test, Erste became the legal person responsible for all the assets and personnel of that undertaking, the actual assets and personnel which contributed to the commission of the infringement. The acquisition of that undertaking therefore entailed the transfer to Erste of all the assets and liabilities of the undertaking, including its responsibilities for infringement of Community law. (88)

230. Consequently, the fact that GiroCredit was controlled by a different parent company at the time of committing the infringement in its individual capacity did not preclude Erste, the new parent company, from being held responsible for that subsidiary’s conduct before its acquisition. To accept the contrary would ultimately amount to calling in question the autonomy recognised to that subsidiary.

231. In those circumstances, I consider that the Court of First Instance was entitled to take the view that the attributability to Erste of responsibility for the infringement committed by GiroCredit could not be precluded for the sole reason that GiroCredit was controlled by a different parent company at the time of committing the infringement.

232. It should further be taken into account that Erste could not fail to be aware of GiroCredit’s anti-competitive behaviour at the time of acquiring it, since they had both participated for almost three years in the infringement referred to in the decision at issue. (89) The appellant therefore acquired that undertaking in full knowledge of the facts.

233. In light of those elements, I consider that the plea raised by Erste, alleging incorrect attribution of responsibility for the infringement, may be rejected as inadmissible in part and unfounded in part, without there being any need to examine the other complaints.

234. It follows from all of the foregoing that the pleas raised by the appellants in support of their claim for annulment of Article 1 of the decision at issue must in my view be rejected in their entirety.

IX –  The pleas alleging breach of Article 15(2) of Regulation No 17 in that the assessment of the gravity of the infringement and of the basic amount of the fine is vitiated by errors of law and reasoning and breaches the rights of the defence

235. These pleas seek a reduction in the amount of the fines imposed on the appellants in Article 3 of the decision at issue. They seek to challenge the findings of the Court of First Instance as regards, first, the gravity of the infringement; second, the existence of attenuating circumstances; and, third, the appellants’ cooperation in the procedure.

A –    First plea, alleging errors of law as regards the assessment of the gravity of the infringement

236. BA‑CA, in the context of its first plea, and Erste and RZB, in the context of their second plea, dispute the merits of the findings of the Court of First Instance relating to the gravity of the infringement.

237. In accordance with the method set out in Section 1 of the Guidelines, the amount of the fines is calculated on the basis of the two criteria referred to in Article 15(2) of Regulation No 17, namely the gravity of the infringement and its duration. (90)

238. The first and second paragraphs of Section 1A of the Guidelines are worded as follows:

‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.

–        minor infringements:

These might be trade restrictions, usually of a vertical nature, but with a limited market impact and affecting only a substantial but relatively limited part of the Community market.

Likely fines: [EUR] 1 000 to [EUR] 1 million.

–        serious infringements:

These will more often than not be horizontal or vertical restrictions of the same type as above, but more rigorously applied, with a wider market impact, and with effects in extensive areas of the common market. …

Likely fines: [EUR] 1 million to [EUR] 20 million.

–        very serious infringements:

These will generally be horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market …

Likely fines: above [EUR] 20 million.’

239. The gravity of the infringement is then analysed by reference to the characteristics of each undertaking concerned. Within each of those categories, the scale of penalties makes it possible to apply differentiated treatment to the undertakings according to the nature of the infringements committed. The Commission then takes into account the effective economic capacity of the undertakings concerned to cause damage, and sets the amount of the fine at a level which must ensure that it is deterrent. It is at that stage that the Commission may place the undertakings in different categories and weight the starting amount of the fine for each of them.

240. Having recalled those elements, I shall now examine all the complaints raised by Erste, RZB and BA‑CA, alleging incorrect assessment of the gravity of the infringement.

241. As I stated at point 69 of this Opinion, the purpose of review by the Court of Justice is to examine to what extent the Court of First Instance correctly took into consideration the factors making it possible to assess the gravity of the conduct of the undertaking in light of Article 81 EC and Article 15 of Regulation No 17.

1.      First part of the plea, alleging an assessment inconsistent with the Guidelines

a)      Arguments of the parties

242. RZB claims that there is a contradiction in the grounds of the judgment under appeal. Whereas, at paragraph 226 of the judgment under appeal, the Court of First Instance stated that the Commission cannot depart from the method which it set out in the Guidelines, it held, at paragraph 237 of that judgment, that the fact that the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing that infringement by reference to factors that are not expressly mentioned in the Guidelines. The appellant criticises the Court of First Instance for having departed from the method set out in the Guidelines for the purpose of reviewing the legality of the decision at issue. It maintains that the Court of First Instance was thus wrong to hold that that assessment could take account of criteria which are not expressly mentioned in the Guidelines, when those Guidelines give rise to legitimate expectations on the part of undertakings.

243. The Commission contends that, while it is effectively limited by the Guidelines which it has set for itself, the same does not apply to the Court of First Instance in the exercise of its unlimited jurisdiction. Furthermore, it is clear from the case-law that the Guidelines establish only a ‘minimum programme’ which does not give rise to an exhaustive list of the factors to be taken into account. It is even possible to depart from that programme where the circumstances justify such a departure.

b)      Assessment

244. I consider that this complaint is unfounded.

245. In considering that the method described by the Commission in the Guidelines did not preclude other factors not expressly mentioned in the Guidelines from being taken into consideration, the Court of First Instance did not in my view make an error of assessment.

246. The Guidelines contain flexible elements which allow the Commission to take account of numerous factors in assessing the gravity of the infringement and in the limits set forth in Article 15(2) of Regulation No 17. (91)

247. Among those factors, referred to in Section 1A of the Guidelines, are not only those linked with the nature of the infringement, its impact and its geographic scope, but also the factors linked with the actual characteristics of the undertakings and the need to ensure that any action taken is deterrent. It is in assessing each of those factors that the Commission is necessarily led to take into consideration the specific factors of the infringement, which the Guidelines cannot list exhaustively. (92)

248. In that regard, the Commission may rely on numerous factors which the Court itself has identified in its case-law. (93)

249. It may, first of all, evaluate the gravity of the infringement by reference to the particular circumstances of the case and take account of the regulatory and economic context of the offending conduct. In examining the nature of the restrictions placed on competition, the Commission may take into account the content, the duration, the number, the intensity and the geographic scope of the agreement and also the value of the goods covered by it. It may also take into consideration the number and relative importance on the market of the parties to the agreement by examining, in particular, their market share, their size, their conduct and their role in setting up the agreement. The Commission may also examine the situation of the market at the time when the infringement was committed and take account of the deterioration experienced by the economy. Last, it may take account of the danger which the agreement in question poses for the objectives of the European Community.

250. To that extent, I do not consider that the Commission departed from the method which it set for itself in the Guidelines and failed to have regard to the legal certainty of the undertakings concerned. (94)

251. In light of those factors, I consider that the analysis carried out by the Court of First Instance on this point is not vitiated by any error of law and does not suffer from any contradiction in the grounds.

252. In my view, this first part must therefore be rejected.

2.      Second part of the plea, alleging incorrect assessment of the ‘very nature’ of the infringement

a)      Arguments of the parties

253. In support of the second part, RZB puts forward four complaints.

254. First, RZB maintains that the Court of First Instance erred in law in holding, at paragraph 240 of the judgment under appeal, that the nature of the infringement plays a major role in characterising very serious infringements, while the other criteria, namely the actual impact of the infringement on the market and the geographic scope of the relevant market, do not carry the same weight.

255. Second, the appellant maintains that the Court of First Instance also erred in law in basing its assessment on factors not found in the Guidelines, namely the importance of the banking sector for the economy, the wide range of banking products covered by the cartel and the fact that the very great majority of the Austrian banks participated in the meetings.

256. Third, the appellant criticises the Court of First Instance for not having taken account of the government’s policy of protecting the banking sector from the free play of the market. That Court also wrongly considered that the intervention of the State authorities in the conduct caught by Article 81 EC is an aggravating circumstance with respect to the fine.

257. Fourth, RZB claims that the Court of First Instance was wrong not to take the deterrent effect into consideration when examining the intrinsic gravity of the infringement, even though it advocates an overall examination.

b)      Assessment

258. As regards the first complaint, I consider that the Court of First Instance was entitled to hold that the very nature of the infringement effectively plays a major role in characterising very serious infringements.

259. It follows, first, from consistent case-law that horizontal agreements on prices have always been considered to form part of the most serious infringements of Community law, in so far as they represent a direct interference with the essential parameters of competition. (95) In the present circumstances, it seems clear to me that a price-fixing cartel, like the ‘Lombard network’, of a size such as that found by the Commission, affecting an economic sector as important as the banking sector, cannot avoid being characterised as a very serious infringement.

260. Furthermore, the Court of First Instance held in Michelin v Commission (96) that the gravity of the infringement may be established by reference to the nature and the object of the abusive conduct and that factors relating to the object of a course of conduct may be more significant for the purpose of setting the amount of the fine than those relating to its effects. (97) The Court of Justice has confirmed that approach when it considered that the effect which an anti-competitive practice has is not a conclusive criterion for assessing the proper amount of a fine. (98)

261. Last, and as the Court of First Instance correctly observed at paragraph 240 of the judgment under appeal, it follows from the Guidelines and, in particular, from the description of very serious infringements that price-fixing cartels may be characterised as very serious on the basis of their nature alone, without there being any need for the Commission to demonstrate that the infringement had an actual impact on the market or to evaluate the size the relevant geographic market. (99) Thus, this type of agreement may by its very nature constitute a very serious infringement, independently of its actual impact on the market and its geographic scope.

262. Consequently, the Court of First Instance cannot be criticised for having held that the three criteria set out at Section 1A of the Guidelines do not assume the same importance for the purpose of assessing the gravity of an infringement.

263. As regards the second complaint, I have already explained at points 245 to 251 of this Opinion that the Court of First Instance was entitled to assess the gravity of the infringement by reference to factors other than those expressly mentioned in the Guidelines. I propose, accordingly, that the Court should reject this complaint as unfounded.

264. As regards the third and fourth complaints, the appellant essentially criticises the weighting of the criteria which permitted the assessment of the gravity of the infringement. In light of the role to be played by the Court in the context of an appeal, I consider that it is not its place to carry out such an examination. I therefore invite the Court to declare these complaints inadmissible.

265. In light of all of those factors, I am of the view that the second part of this plea must be rejected.

3.      Third part of the plea, alleging incorrect assessment with respect to ‘the actual impact [of the infringement] on the market’

a)      Arguments of the parties

266. RZB maintains that the Court of First Instance erred in law in allowing the Commission to infer from the mere ‘implementation’ of the cartel that the cartel had an actual impact on the market. That assessment is contrary to the wording of the Guidelines and shows that the Court of First Instance confused the ‘implementation’ of cartels, which is a condition of the application of Article 81 EC, with the stricter criterion of an ‘actual impact on the market’, which is relevant for the purpose of justifying the gravity of the infringement. Cascades v Commission runs counter to the reasoning of the Court of First Instance. (100) Furthermore, the economic report produced by the appellants shows that the agreements relating to essential products had no impact on the conditions actually applied.

267. BA‑CA submits that the actual repercussions of the infringement on the market were assessed incorrectly. It maintains that the economic report produced by the appellants shows that the meetings did not result in such effects on the Austrian markets.

268. Furthermore, in BA-CA’s submission, the Court of First Instance breached the principles governing the taking of evidence in its examination of the economic report. By requiring that such an expert report should concern ‘all the potential effects of the agreements on the market’, the Court of First Instance went further than what can be required of an expert report designed to show that the agreements were not implemented and that there was no causal link between the banking committees and competition on the market.

269. The Commission, for its part, contends that the economic report submitted by the banks covered only two banking products and did not deal with the potential effects of the agreement on the market. In any event, even the partial implementation of an agreement having an anti-competitive object is sufficient to preclude the possibility of concluding that that agreement did not have an impact on the market.

b)      Assessment

270. To my mind, the complaint raised by the appellants is one of the most delicate points in this case.

271. Neither the Guidelines nor the Community case-law are particularly clear on the need to take into account the criterion based on an actual impact of the infringement on the market or the way in which that criterion must be taken into account.

272. The Court holds that, for the purpose of assessing the effects of the infringement on the market, the Commission must refer to the competition which would normally have existed in the absence of an infringement. (101) Furthermore, in the case of intrinsically serious infringements of competition law, the Court considers that the effect of an anti-competitive practice is not a conclusive criterion for assessing the proper amount of the fine. (102)

273. In addition, according to Section 1A of the Guidelines, the Commission may take account of the actual impact of the infringement on the market only where this can be measured. In other words, I understand that if that impact cannot be measured, the Commission cannot take it into account when calculating the fine.

274. On the other hand, as regards horizontal price cartels or market-sharing agreements, it follows from the Guidelines and, in particular, from the description of very serious infringements that those cartels may be characterised as very serious on the basis of their nature alone, without the Commission being required to show that the infringement had an actual impact on the market or to evaluate the size of the relevant geographic market. (103) In such a situation, the actual impact of the infringement is one among a number of factors which, if it can be measured, may permit the Commission to increase the amount of the fine beyond the threshold of EUR 20 million.

275. Although the Guidelines have clarified the way in which the Commission assesses the gravity of an infringement, numerous uncertainties none the less subsist as to what is covered by the expression ‘where this can be measured’. Up to what point must the Commission be able to measure the actual impact of the infringement on the market in order to take it into account for the purpose of calculating the fine? Is it sufficient that the Commission, for the purpose of calculating the fine, shows that the agreements were implemented for it to infer that the infringement had an actual impact on the market, as the Court of First Instance held in the judgment under appeal, or must it provide further indications?

276. It appears to me that the Community judicature’s response on this point is unclear, since uncertainty still exists as to the factors which the Commission must take into account.

i)      The Community judicature’s approach

277. According to consistent case-law, the Court of First Instance considers that the Commission is not required to quantify precisely the actual impact of an infringement or to provide an assessment with figures. (104) The Court of First Instance points to the difficulties which the Commission may face, in so far as, according to that Court, ‘proving [the actual effects of an infringement] involves comparing the situation arising from that infringement with the situation which would have been observed had it not arisen, a comparison which is, by its very nature, hypothetical’. (105)

278. In those circumstances, the Court of First Instance considers that the actual impact of a cartel on the market must be considered to be sufficiently demonstrated if the Commission is able to provide specific and credible indications showing, with reasonable probability, that the cartel had an impact on the market. (106)

279. It is on the basis of that finding that two streams in the case-law have subsequently been developed.

280. In the first stream, the Court of First Instance considers that the Commission may legitimately rely on the implementation of the cartel in order to conclude that there has been an impact on the market.

281. That is the stream supported by the Court of First Instance in the judgment under appeal, in line with the judgments delivered in Groupe Danone v Commission (107) and Brasserie nationale and Others v Commission. (108)

282. The Court of First Instance tends to qualify the importance of the criterion based on the actual impact of the infringement on the market and the requirements associated with proof of such an impact, in so far as, in the case of price-fixing or market-sharing agreements, the Commission is not required to take them into account within the meaning of the Guidelines in order to characterise that infringement as very serious. (109)

283. In the case of a price-fixing agreement such as the ‘Lombard network’, the Court of First Instance considers that the Commission may legitimately infer that the infringement had effects on the market owing to the fact that the members of the cartel took measures to apply the agreed prices. (110) In any event, the Court of First Instance has held that where the implementation of the cartel has been established, the Commission is not required systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel, on account of the considerable resources that that would necessitate and recourse to hypothetical calculations. (111)

284. In addition, the Court of First Instance accords decisive importance to the parties’ intention to give concrete effect to their agreements. It has taken the view that ‘[w]hat then happened at the level of the market prices actually obtained was liable to be influenced by other factors outside the control of the members of the cartel’ and has held that the members of the cartel cannot benefit from external factors which counteracted their efforts. (112)

285. That case-law has been followed by the Court of First Instance in a number of recent judgments, including Hoechst v Commission (113) and Carbone‑Lorraine v Commission. (114)

286. In the second stream of case-law, the Court of First Instance requires that the Commission do more than merely prove that the cartel was implemented in order to confirm that it had a real impact on the market.

287. In Prym and Prym Consumer v Commission, (115) the Court of First Instance observed that ‘the implementation of an agreement does not necessarily mean that it had actual effects’ on the market. (116) In that case, the Court of First Instance held that the Commission, for the purpose of calculating the fine, could not rely solely on a causal relationship and merely observe that the agreement had been implemented in order to infer that there had been an actual effect on the market.

288. Furthermore, in Roquettes Frères v Commission and Archer Daniels Midland v Commission, (117) concerning the cartel on the sodium gluconate market, the Court of First Instance observed that ‘because it is a precondition for the actual impact of a cartel, the effective implementation [of that cartel] constitutes an initial indicator that the cartel has had an actual impact’. (118) It may constitute a strong indication provided that the Commission does not confine itself to that analysis. (119)

289. Thus, in those two cases the Commission had not only established that the agreements had been ‘carefully’ implemented, but had also shown that the prices fixed by the cartel tallied with those actually charged on the market by the undertakings concerned. The Commission had also emphasised the importance of the market shares held by the undertakings on the relevant market and also the efforts which they had devoted to organising, following up and monitoring the agreements. (120)

290. Furthermore, in Jungbunzlauer v Commission and Archer Daniels Midland II, concerning the cartel on the citric acid market, the Court of First Instance held that the Commission had correctly assessed the actual impact of the cartel on the market by demonstrating that the agreements had been ‘carefully’ implemented and that the prices set by the cartel tallied with those actually charged by the undertakings concerned, emphasising the importance of their market shares on the relevant market and the duration of the infringement. (121)

291. Last, in Knauf Gips v Commission, BPB v Commission and Lafarge v Commission, concerning the cartel on the plasterboard market, the Court of First Instance held that, with the exception of the stability of the market shares, the Commission had sufficiently proved the effects of the infringement by demonstrating that the participants in the cartel held the majority of the relevant market, that the arrangements agreed between the parties had been implemented and that they tended to increase prices to a higher level than would have been reached without them. The Court of First Instance held that all of those indicia tended to show that the infringement was liable to give rise to significant anti-competitive effects. (122)

292. Those judgments merely serve to illustrate the case-law of the Court of First Instance which tends to require that the Commission produce more evidence than that based solely on the implementation of the cartel. In those judgments, the Court of First Instance had the opportunity to specify the importance that must be attached to each of those indicia.

293. As regards the indicium based on the implementation of the cartel, the Court of First Instance considers that its weight may be increased with the duration of the agreement. The Court of First Instance has observed that the sound functioning of a complex cartel concerning price fixing, market sharing and exchange of information leads to significant administrative and management costs and that it may therefore be properly considered that if the undertakings persisted with the infringement and ensured that it was managed efficiently over such a long period, in spite of the risks inherent in such an unlawful activity, the cartel members made a profit from the cartel and, accordingly, the cartel had an actual impact on the relevant market. (123)

294. As regards the indicium based on the size and stability of the undertakings’ market share, the Court of First Instance considers that that factor is not in itself sufficient to establish the existence of an actual impact. In its view, the fact that the parties to the cartel hold a majority share of the market relates to the object of the cartel and not to its effects, and therefore constitutes an indication that the infringement was capable of producing significant anti-competitive effects and not that that was actually the case. (124) The Court of First Instance considers that the Commission must then assess that factor by reference to the data relating to the situation on the relevant market before the cartel. The Court of First Instance further considers that the weight of that indicium increases with the duration of the cartel. (125)

295. As regards the indicia based on coordinated price movements, the Court of First Instance has adopted two approaches.

296. In Jungbunzlauer v Commission and Archer Daniels Midland II, the Court of First Instance considered that in reviewing the Commission’s appraisal of the actual impact of the cartel on the market ‘it is particularly important that the Court examine the Commission’s assessment of the cartel’s effect on prices’. The Commission must then find, with a reasonable degree of probability, that the agreements at issue have in fact enabled the parties concerned to achieve a higher level of price than that which would have prevailed had there been no cartel. In that context, the Court of First Instance considers that the Commission must take into account all the objective conditions of the relevant market and have regard to the economic context and, if appropriate, also the legislative background and must demonstrate that, had there been a free play of competition, prices would not have developed in the same way as the prices which were actually charged. (126)

297. In Jungbunzlauer v Commission, the Court of First Instance considered that the existence of permanent parallelism between the prices fixed by the members of the cartel and the prices actually demanded of customers ‘show[ed] to the requisite legal standard that the cartel had had an actual impact on the market which was “measurable”, within the meaning of the Guidelines, by comparing the hypothetical price which would have prevailed without the cartel with the price charged in the present case as a result of the formation of the cartel’. (127)

298. In its recent judgment in Lafarge v Commission, on the other hand, the Court of First Instance considered that, where the implementation of a cartel is established, the Commission is not required to demonstrate systematically that the agreements did in fact enable the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel. To do so would require the use of considerable resources and necessitate hypothetical calculations based on economic models whose accuracy the Court would find it difficult to ascertain. In that case, the Court of First Instance held that the Commission had demonstrated to the requisite legal standard that the cartel had had an actual impact on prices, on the basis of the publication of price lists and price fixing, and that, although indicative, that impact was deemed by the Court of First Instance to affect the play of competition. (128)

299. In Degussa v Commission, the Court of First Instance held that those indications must, moreover, be based on objective economic factors and must not derive from pure conjecture. (129)

300. It is in light of those factors that I shall now examine the merits of RZB’s complaint.

ii)    My point of view

301. As I have stated, the appellant, in essence, takes issue with the Court of First Instance for having allowed the Commission to infer merely from the implementation of the cartel that the infringement had had an actual impact on the market, for the purpose of calculating the fine.

302. I consider that this complaint is well founded.

303. I consider that it is important to maintain a high threshold of proof with regard to the Commission when it asserts that a cartel has had an impact on the market for the purposes of assessing the gravity of the infringement and calculating the amount of the fine.

304. It is true that, according to the case-law of the Court and the Guidelines, the Commission is not required to take account of the effect of the infringement on the market in the case of a particularly serious infringement, such as the agreement at issue.

305. None the less, if the Commission claims that the infringement has had an actual impact on the market, that enables it to raise the level of the gravity of the infringement and to increase the basic amount of the fine beyond the threshold fixed in the Guidelines.

306. It appears to me that the fines referred to in Article 15 of Regulation No 17 are, by their nature and their size, comparable to a criminal penalty, although they are, in the strict sense of the term, in the nature of an administrative penalty. The Commission’s intervention, which is primarily in the nature of a criminal investigation, must therefore comply, in both procedural and substantive terms, with the principles of criminal law and the Commission must therefore prove the factors on which it relies when calculating the amount of the penalty.

307. That is even more important in the case of a very serious infringement, since the Commission is bound only by the ceiling laid down in Article 15(2) of Regulation No 17. Unlike in the case of an infringement characterised as minor or serious, the Commission may go well beyond the threshold of EUR 20 million referred to in the third indent of the second paragraph of Section 1A of the Guidelines, which leaves the Commission a wide margin of discretion.

308. In that context, if the Commission chooses to take account of the actual impact of the infringement on the market in assessing the gravity of the infringement and in order to determine the amount of the fine to be imposed for that infringement, it must then be in a position to provide actual, credible and sufficient evidence showing that the infringement had real effects on the market and also that there was a causal link between the anti-competitive agreement and the alteration of competition on the market.

309. However, that is not the approach which the Court of First Instance took in the judgment under appeal.

310. Although the Court of First Instance was entitled to take the view, at paragraph 288 of the judgment under appeal, that ‘[i]t was … legitimate for the Commission to rely on the implementation of the cartel’, to my mind it erred in law in holding that such an analysis was sufficient for the Commission to conclude that there was an impact on the market.

311. First, as the Court of First Instance held in Prym and Prym Consumer v Commission, it appears to me that the implementation of a cartel does not necessarily mean that it will produce real effects on the market. Still less, in my view, are those effects capable of being ‘measured’ within the meaning of Section 1A of the Guidelines. The implementation of an agreement therefore constitutes an important indicium, since it constitutes a precondition of an actual impact on the market, but to my mind it is only the beginning of an indicium. (130)

312. I consider that the Commission must also be able to gather indicia drawn from developments in the undertakings’ prices or market shares, without having to employ considerable resources. Within the framework, for example, of a price-fixing agreement, such as the ‘Lombard network’, it seems to me to be essential and perfectly consistent with the proof which the Commission is supposed to provide that it should examine, by reference to the objective conditions of the relevant market, the effects of the agreement on prices. Such an analysis may make it possible to find an increase or a reduction in prices following the implementation of the agreements, or the existence of parallelism between the prices fixed by the cartel and the prices actually charged. It is in the context of that assessment, and as the Court of First Instance itself observed at paragraph 284 of the judgment under appeal, that the Commission must, in assessing the actual impact of the infringement on the market, take as a reference the competition which would normally have prevailed if there had been no infringement. Although it is difficult to require the Commission to provide arithmetic assessments, I none the less believe that it may, on the basis of a comparison between the situation of the market before the infringement was committed and after it was implemented, demonstrate certain tendencies.

313. Nor, consequently, do I agree with the reasoning of the Court of First Instance set out at paragraph 287 of the judgment under appeal, to the effect that there is no need to take into account the level of market prices actually obtained, since it was liable to be influenced by other factors outside the control of the members of the cartel. There is no need for any reminder that the object of the control carried out by the Commission is to measure the actual impact of the cartel on the market, in particular on prices, and, as the Court of Justice has held, when doing so to take account of the economic background and the legislative framework.

314. Last, I would only observe that, although I share the Court of First Instance’s concern as to the difficulties which the Commission may encounter in proving that the cartel has had an actual impact, (131) I consider that in the present case that cannot justify the insufficiency of the Commission’s proof, especially where it bases its assessment on a single indicium, based on the implementation of the agreement.

315. In light of all of those factors, I consider that the Court of First Instance erred in law in holding that, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, the Commission could rely on the implementation of the cartel in order to conclude that there had been an actual impact on the market.

316. Consequently, I propose that the Court should declare this third part of the plea well founded.

4.      Fourth part of the plea, alleging incorrect assessment with respect to ‘the scope of the relevant geographic market’

a)      Arguments of the parties

317. RZB takes issue with the Court of First Instance for not having examined, at paragraphs 308 to 313 of the judgment under appeal, the argument that the manifestly and incontestably limited size of the territory of the Republic of Austria precluded the characterisation of the infringement as very serious. Such reasoning is also contrary to the wording of the Guidelines and to the Commission’s practice when taking decisions.

b)      Assessment

318. I consider that this part is unfounded.

319. First, and contrary to the appellant’s contention, the Court of First Instance set out clearly, and stating sufficient reasons, at paragraphs 308 to 313 of the judgment under appeal, the reasons why the limited size of the relevant geographic market did not in its view preclude the infringement from being characterised as very serious.

320. As that Court rightly explained at paragraph 240 of the judgment under appeal, and as I observed at point 261 of this Opinion, price-fixing agreements, such as the agreements at issue, may, on the basis of their nature alone, be classified as very serious infringements, independently of their impact on the market or the size of the relevant geographic market.

321. Furthermore, it should be borne in mind that the Commission’s practice in previous decisions cannot serve as a legal framework for the fines imposed in competition matters. (132) It follows from consistent case-law that information drawn from that practice can give only an indication, since the facts of the cases, such as markets, products, countries, the undertakings and periods concerned, were not the same. (133) In those circumstances, the appellant cannot rely on previous decisions issued by the Commission.

322. Last, I would add that neither the EC Treaty, nor Regulation No 17, nor the Guidelines, nor the case-law permit the view that only restrictions affecting very wide markets may be characterised as very serious infringements. As the Court of First Instance correctly observed at paragraph 312 of the judgment under appeal, the Court of Justice considers that the territory of a single Member State, or even a small part of that territory, may be considered to constitute a substantial part of the common market. Furthermore, as we have seen, the infringement found in the present case does not affect the Republic of Austria alone, but is capable of affecting trade between Member States.

323. In those circumstances, I consider that the fourth part of this plea must be rejected.

5.      Fifth part of the plea, alleging incorrect assessment by the Court of First Instance of the influence of the selective nature of the proceedings and breach of the duty to state reasons

a)      Arguments of the parties

324. In support of the fifth part, RZB puts forward two complaints.

325. In the first place, RZB takes issue with the Court of First Instance for having rejected its argument that the characterisation of the infringement as very serious is incompatible with the Commission’s decision to take action against only some of the undertakings which had participated in the infringement.

326. In the second place, RZB maintains that the Court of First Instance breached its obligation to state reasons by failing to respond to the arguments (i) that the high level of the fine contradicts the symbolic nature of a proceeding ultimately directed at the entire Austrian banking sector and (ii) that it leads to distortion of competition since the fine was imposed on only 10% of the banks. Last, the characterisation of the infringement as very serious cannot be reconciled with the complaint of injustice of individual undertakings.

b)      Assessment

327. As regards the first complaint, I agree with the Commission that it constitutes merely the reproduction verbatim of a plea already raised before the Court of First Instance and fails to identify any error of law. In accordance with the principles set out at point 65 of this Opinion, I propose that the Court should reject this complaint as inadmissible.

328. As regards the second complaint, alleging failure to state reasons in the judgment under appeal, I consider that it must not be upheld. (134)

329. It will be recalled, first of all, that pursuant to Article 36 of the Statute of the Court of Justice, which is applicable to the Court of First Instance pursuant to Article 53 of that Statute, ‘[j]udgments shall state the reasons on which they are based’.

330. According to the Court of Justice, the reasons on which a judgment is based must appear clearly and unequivocally from the reasoning of the Court of First Instance, in such a way as to enable those concerned to be aware of the reasons underlying the decision taken and the Court to exercise its powers of review. (135) In the case of an appeal based on Article 230 EC, the requirement to state reasons clearly means that the Court of First Instance must examine the pleas in annulment relied on by the applicant and set out the reasons which lead it to reject the plea or to annul the contested measure. In the context, in particular, of the implementation of Article 81 EC and Article 15 of Regulation No 17, the Court considers that it is incumbent on it to ascertain whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the applicant with a view to having the fine cancelled or reduced. (136)

331. However, in Connolly v Commission (137) the Court placed limits on that obligation to respond to the pleas raised. The Court considered that the grounds set out in a judgment must be assessed by reference to the circumstances of the case (138) and that the Court of First Instance cannot be required to respond ‘in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence’. (139)

332. In light of those factors, I consider that the Court of First Instance was not required to respond to the arguments at issue advanced by the appellant.

333. In effect, at paragraph 315 of the judgment under appeal, the Court of First Instance stated that the appellant’s argument that the Commission had instituted proceedings against the undertakings selectively and symbolically was incorrect. It observed that the Commission had in reality chosen the addressees of the decision on the basis of the frequency with which they had participated in the most important committee meetings. (140) In those circumstances, it appears to me that the Court of First Instance was not required to continue with its examination of the other arguments raised by the appellant and based on that premiss.

334. I therefore propose that the Court should declare this fifth part inadmissible and unfounded.

6.      Sixth part of the plea, alleging failure to carry out a global assessment of the gravity of the infringement

a)      Arguments of the parties

335. RZB takes issue with the Court of First Instance for not having carried out a global assessment of the gravity of the infringement, taking into account all the aspects mentioned in the Guidelines (the actual nature of the infringement, the actual impact of the infringement and the size of the relevant geographic market) and of the exogenous factors, namely the economic importance of the Austrian banking sector, the absence of necessity for deterrence and the selective nature of the proceedings. If the Court of First Instance had carried out such an analysis, it would then have found that the infringement at issue could not be characterised as very serious.

b)      Assessment

336. I consider that this argument is unfounded. When examining the first part of this plea, I considered that the Court of First Instance had not made any error of assessment when it held that the Commission was able to take account of factors other than those expressly mentioned in the Guidelines, and in particular ‘exogenous’ factors, (141) for the purpose of its assessment of the gravity of the infringement. In reality, the appellant is raising a part of a plea which to my mind simply contradicts what it maintained in the context of the first part of this plea.

337. Consequently, this sixth part must be rejected as unfounded.

7.      Seventh part of the plea, alleging incorrect assessment with respect to the division of the appellants into categories

338. It is apparent from the decision at issue that the Austrian banking market is characterised by the presence of bank groupings with multi-tier, or ‘decentralised’, structures.

339. Savings banks and credit unions have a two-tier structure and the agricultural credit cooperatives (Raiffeisen banks) have a three-tier structure. Within each of those multi-tiered structures (‘the savings banks sector’, ‘the Raiffeisen sector’ and ‘the credit unions sector’ and, together, ‘the decentralised sectors’), a central institution, commonly known as ‘the lead institution’, performs support and service functions for the banks in the sector. Erste, RZB and ÖVAG are the central institutions of the savings banks sector, the Raiffeisen sector and the credit unions sector respectively.

340. Under Section 1A of the Guidelines, the Commission may, in the case of very serious infringements, adjust the basic amount of the fine by reference to the effective economic capacity of offenders to distort competition.

341. In the present cases, the Commission considered, at recital 515 to the decision at issue, that treatment of that kind was necessary, since there was a wide variation in the size of the undertakings and bank groupings that had taken part in the ‘Lombard network’.

342. The Commission therefore divided the addressees of the decision at issue into five categories, according to the available data on their market shares. As regards Erste, RZB and ÖVAG, the Commission considered that, as the lead institutions of the decentralised sectors of the savings banks, the Raiffeisen banks and the credit unions respectively, they should be attributed the market shares of their respective sectors in order better to assess their economic power on the market. Erste and RZB were therefore placed in the first category, whereas ÖVAG was placed in the third category.

a)      The complaints raised by the appellants

343. First, subject to certain details specific to their respective situations, Erste, RZB and ÖVAG call in question the principle of such attribution of market shares. They contend that the Court of First Instance failed to have regard, at the legal level, to the conditions in which the Commission could attribute to them, as central institutions of the decentralised sectors, the market shares of their respective sectors for the purpose of placing them into categories. In that regard, the appellants contend that that attribution of market shares constitutes a breach of Article 15(2) of Regulation No 17 and the principle of proportionality of penalties, the principle of personal responsibility for infringements of competition law and the principle of equality.

344. Second, Erste, RZB and ÖVAG contend that the Court of First Instance breached their rights of defence.

345. Third, they maintain that the Court of First Instance did not correctly assess their role and their functions within the bank groupings.

346. Fourth, Erste claims that the findings of the Court of First Instance with respect to the market share of the grouping of savings banks are incorrect.

347. Fifth, ÖVAG contends that the Court of First Instance distorted the facts and the evidence before it.

i)      First complaint, alleging that the attribution to the centralised institutions of the market shares of the banks in the decentralised sectors was unlawful

348. Erste, RZB and ÖVAG put forward a number of arguments in support of this complaint.

–       The principle of the attribution of market shares and the assessment criteria used for that purpose

349. Erste, RZB and ÖVAG maintain that the Court of First Instance erred in law in holding, at paragraphs 356 and 373 of the judgment under appeal, that, in attributing to them the market shares of the banks in their decentralised sectors for the purpose of calculating the fine, the Commission did not impute to them the unlawful conduct of those banks and penalised them ‘for their own conduct’.

350. The appellants maintain that to attribute those market shares to them amounts in reality to imputing to them liability for the infringements committed by the banks in their decentralised sectors, since those banks’ position on the market is taken fully into account for the purpose of calculating the fine. Erste, RZB and ÖVAG therefore contend that the attribution of market shares ought to have been assessed by reference to the criteria which the Court of Justice has laid down concerning the imputability of infringements within a group of companies, namely the possibility of control of the undertaking and the existence of an economic unit.

351. By relying on the existence of stable relationships within the bank groupings and on the support and service functions exercised by the central institutions, the Commission and the Court of First Instance circumvented the strict requirements laid down in the case-law.

352. The Commission contends that the decisive criterion for the purpose of division into categories is the comparison of real market power, which is based on the stable relationships of the decentralised banks with their lead institutions.

–       The breach of Article 15(2) of Regulation No 17, of the principle of the proportionality of the penalty, of the principle of personal liability for infringements of competition law and of the principle of equality

353. Erste maintains that the attribution to the lead institutions (GiroCredit or Erste (142)) of the market shares of some 70 Austrian savings banks constitutes a breach of Article 15(2) of Regulation No 17 in combination with the sixth paragraph of Section 1A of the Guidelines. That provision does not make it possible to attribute to an undertaking the market shares of third-party undertakings present in the same business sector.

354. Erste and RZB also maintain that such attribution breaches the principle of personal liability for infringements of competition law and the principle of proportionality of the penalty.

355. Last, RZB and ÖVAG assert that the Court of First Instance also breached the principle of equality. In that regard, RZB takes issue with the Court of First Instance for having assimilated the central institutions of the decentralised sectors with large centralised banks for the purpose of classification into categories. RZB maintains that the Court of First Instance ought to have considered whether it was appropriate to have regard to only part of the market shares of each sector concerned and thus to take into account the fact that, where it participates in the interbank committee meetings, a central institution such as RZB merely transmits information, since it cannot intervene on behalf of the banks and it cannot give instructions to implement any agreements.

356. The Commission observes that the attribution of market shares in the decision at issue is based not on specific findings relating to the actual participation of the decentralised banks in the infringement, but solely on the fact that the Commission imposed penalties on the lead institutions for their own conduct. The Commission makes clear that no conduct of third parties was imputed in the present case.

357. As regards the arguments put forward by RZB, the Commission states, first of all, that the fines imposed on the lead institutions do not exceed the ceiling of 10% of turnover of the undertaking concerned, in accordance with Article 15 of Regulation No 17. That is therefore different from the situation in which it would have been necessary to take total group turnover into account if the lead institution and the decentralised banks had been regarded as an economic unit. The Commission observes, next, that the appellant does not state to what extent different situations have been treated in the same way without appropriate justification.

358. Last, the Commission claims that the argument seeking a re-examination of the proportionality of the fine is inadmissible, as the Court of Justice cannot substitute, on grounds of fairness, its own assessment for that of the Court of First Instance.

ii)    Second complaint, alleging breach of the rights of the defence

359. Before the Court of First Instance, Erste and ÖVAG criticised the Commission for not having mentioned in the statement of objections its intention to attribute to the central institutions the market shares of their respective groupings for the purpose of calculating the fine.

360. In their respective appeals, Erste and ÖVAG maintain that the Court of First Instance breached their rights of defence in holding, at paragraph 369 of the judgment under appeal, that the indication in the statement of objections that they were the lead institutions of the savings banks sector and the credit unions sector was sufficient.

361. Erste and ÖVAG maintain that the Commission ought not merely to have made a general assertion and ought to have informed the undertakings of the conclusions which it proposed to draw from all the evidence relating to the infringement.

iii) Third complaint, alleging incorrect assessment of the role and functions of the central institutions within the bank groupings

362. Erste, RZB and ÖVAG criticise the Court of First Instance for not having correctly assessed their role and their functions within the bank groupings.

363. Erste disputes the Court of First Instance’s finding, at paragraph 401 of the judgment under appeal, that it played the role of ‘representative’ of the savings banks sector at the banking committee meetings.

364. ÖVAG submits that, contrary to the finding of the Court of First Instance, it is unable to bind the autonomous credit institutions and does not form an economic unit with them.

365. RZB claims, in turn, that it did not have ‘greater expertise and better information’ than the banks in its decentralised sector, contrary to what is stated at paragraph 405 of the judgment under appeal. In any event, RZB maintains that the findings of the Court of First Instance relating to its links with the decentralised sector precluded the imputation to it of the entire market shares of that sector. Last, the appellant submits that it does not have a capacity comparable to that of the large banks, with their hierarchical organisations, to cause damage to individuals, and emphasises that it is equally unable to take advantage of the practices at issue, as it does not have a significant individual market share or participate in the profits of the banks in the sector.

iv)    Fourth complaint, alleging incorrect determination of the market shares of Erste and the savings banks grouping

366. Erste maintains that the Court of First Instance was wrong not to find that the Commission relied on an overvaluation of market shares to place it in one of the categories. Both before and after its merger with GiroCredit, its market share was significantly below that which the Commission found and which the Court of First Instance confirmed at paragraphs 455 and 458 of the judgment under appeal.

367. The Court of First Instance therefore erred in law in holding, at paragraph 457 of the judgment under appeal, that Erste must remain in the first category and that, even if the complaint were upheld, it would not call in question the operative part of the decision at issue. In that regard, the Court of First Instance breached the principles of equal treatment and proportionality by not drawing a distinction, for the purpose of classification into categories, between holding a market share of 30% and holding a market share of 17%.

368. The Commission contends that it had the power, whatever the precise market share, to place Erste in the first category after its merger with GiroCredit. As regards the argument relating to the fact that the Commission allegedly took account twice of the market share and conduct of Erste Österreichische Spar‑Casse‑Bank AG (namely Erste before the merger with GiroCredit; ‘EÖ’), the Commission claims that it is inadmissible on the ground that Erste is seeking to obtain a simple re-examination of the facts, which falls outside the jurisdiction of the Court.

v)      Fifth complaint, alleging distortion of the facts and the evidence

369. ÖVAG maintains that the Court of First Instance’s analysis is based on a distortion of the evidence in the file. The exchanges of information and the activities of ÖVAG as the alleged coordinator and representative of the decentralised credit unions were never proved (paragraphs 401 to 406 of the judgment under appeal). Furthermore, the Court of First Instance incorrectly relied on a judgment of the Verfassungsgerichtshof (Constitutional Court) (Austria) of 23 June 1993 to justify the attribution of the market shares of the banks in the sector (paragraphs 392 to 401 of the judgment under appeal). ÖVAG observes that it did not participate in those proceedings and that that judgment concerned only aspects connected with ‘liquid reserves’. The Court of First Instance thus erred in fact and also in law and, moreover, exceeded the margin of discretion conferred on it. Last, the appellant submits that the Court of First Instance did not expressly examine its situation, contrary to what it did with respect to Erste and RZB and the banks in their respective sectors.

370. The Commission observes that the appellant has failed to provide any explanation and submits that this complaint should be rejected. As regards the error made by the Court of First Instance when it referred to the judgment of the Verfassungsgerichtshof, the Commission disputes the existence of any distortion. The Verfassungsgerichtshof ruled formally and generally on relations between the ‘central establishments’ and their ‘primary banks’ and the credit institutions are expressly referred to in that judgment. In the Commission’s submission, ÖVAG does not claim that its role as lead institution can be distinguished from that of the lead institutions of the other sectors.

b)      Assessment

 First complaint, alleging that the attribution to the central institutions of the market shares of the banks in the decentralised sectors was unlawful

371. This complaint, to my mind, raises another delicate point in the case. It concerns the way in which the Commission must calculate the amount of the fine in light of the responsibility which the offender must assume in the commission of the infringement.

372. In the present cases, the Commission calculated the amount of the fine which it proposed to impose on Erste, RZB and ÖVAG, as lead institutions, by attributing to them the market shares of the banks in their decentralised sectors. That enabled it to assess, under the fourth paragraph of Section 1A of the Guidelines, their economic capacity.

373. At paragraphs 356 and 373 of the judgment under appeal, the Court of First Instance held that, in so doing, the Commission did not impute to them the unlawful conduct of the banks in their sectors and ‘penalised [them] for their own conduct’.

374. I consider that the Court of First Instance, in that regard, erred in law and that the judgment under appeal is vitiated by contradictory grounds.

375. By that reasoning, the Court of First Instance confirmed that the lead institution is not responsible for the infringements committed by the banks in its decentralised sector, but that, for the purpose of the calculation of the fine, the market shares of the entire group should none the less be attributed to it.

376. That is not logical. Either the Commission can impute responsibility for the infringement to the lead institution, in that the lead institution forms an economic unit with the decentralised sector, and in that case, for the purpose of the calculation of the fine, can take into account the effective economic capacity of the entire sector, or the Commission takes proceedings against the lead institution for its individual participation in the infringement and, for the purpose of the calculation of the fine, can take into account only its market shares, independently of the market shares of its decentralised sector.

377. The Court of First Instance’s approach is therefore incoherent. It is obvious that the fact of calculating the amount of the fine on the basis of the market shares of the banks in the decentralised sectors amounts to ‘penalising’ the lead institutions for the unlawful conduct of those banks.

378. In fact, I consider that, in calculating the penalty and, in this case, a fine, the Commission can take into account only the effective economic capacity of the undertakings which it has deemed responsible for the infringement committed on the market. That is quite clear from the fourth paragraph of Section 1A of the Guidelines, which refers expressly to the ‘effective economic capacity of offenders’. (143) In the decision at issue, only the lead institutions were deemed responsible for the infringement. The Court of First Instance so stated at paragraph 356 of the judgment under appeal, where it observed that ‘[t]he decision [at issue] does not base the allocation of market shares on specific findings relating to the actual participation of the decentralised banks in the infringement’ and that ‘the Commission penalised the lead institutions for their own conduct’.

379. At this stage of my examination, I consider that the first complaint, alleging that the attribution to the central institutions of the market shares of the banks in the decentralised sectors is unlawful, is well founded, without there being any need to examine the other complaints raised by the appellants, and that the seventh part of this first plea must be upheld.

380. In light of those factors, I therefore consider that the third and seventh parts of the first plea are well founded. In consequence, I propose that the Court should hold that this plea, alleging errors of law in the assessment of the gravity of the infringement, is well founded, and should set aside the judgment under appeal in that it is vitiated:

–        by an error of law, in so far as the Court of First Instance held that the Commission could infer from the mere implementation of the cartel that the infringement had an actual impact on the market, and do so for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, and also

–        by an error of law and a contradiction in the grounds, in so far as the Court of First Instance held that the Commission could, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, attribute to Erste, to RZB and to ÖVAG the market shares of the banks in their decentralised sectors, although it did not impute to them the unlawful conduct of those banks.

381. None the less, I propose that the Court should proceed to examine the other pleas raised by the appellants, in so far as they also seek a reduction in the amount of the fines imposed by the Commission.

B –    Second plea, alleging errors of law, failure to state reasons and distortion of the evidence with respect to the existence of attenuating circumstances

382. According to Section 3 of the Guidelines, the following may constitute attenuating circumstances, if they are established:

–        an exclusively passive or ‘follow-my-leader’ role by an undertaking in the infringement;

–        non-implementation in practice by the undertaking of the offending agreements or practices;

–        termination of the infringement as soon as the Commission intervenes;

–        existence of reasonable doubt as to whether the restrictive conduct does indeed constitute an infringement;

–        infringements committed as a result of negligence; and

–        effective cooperation by the undertaking in the proceedings, where this cooperation has been outside the scope of the Leniency Notice.

383. Neither the Commission, in the decision at issue (recitals 525 to 542), nor the Court of First Instance, in the judgment under appeal (paragraphs 469 to 511), accepted that the appellants could rely on attenuating circumstances.

384. In the present appeals, ÖVAG criticises the Court of First Instance for not having recognised that its passive conduct during the infringement constituted an attenuating circumstance. BA-CA maintains that the Court of First Instance also erred in law in not taking account of the participation of the public authorities in the meetings of the banking committees or of the public nature of those committees.

a)      First part of the plea, alleging incorrect assessment by the Court of First Instance of ÖVAG’s passive conduct

i)      Arguments of the parties

385. ÖVAG criticises, in essence, the way in which the Court of First Instance assessed, under the head of attenuating circumstances, its conduct during the infringement. In that regard, it raises three complaints.

–       First complaint, alleging incorrect exercise of the Court of First Instance’s power of review

386. The appellant criticises the Court of First Instance for having merely reproduced the wording of the Guidelines without examining the circumstances of the case and, in particular, ÖVAG’s role within the ‘Lombard network’.

–       Second complaint, alleging use of an incorrect assessment criterion

387. The appellant maintains that the Court of First Instance erred in law, at paragraph 483 of the judgment under appeal, by basing its assessment on the criterion of the banks’ participation in the committees, which was also used in the context of the division of the banks into categories. In so doing, the Court of First Instance combined the question of the division of the banks according to their market power with the question of the recognition of an attenuating circumstance. In the appellant’s submission, recognition of an attenuating circumstance cannot depend on the ‘sporadic’ nature of an undertaking’s participation in the meetings. The Guidelines require the Commission to undertake a differentiated assessment of the roles and not to make a Manichean ‘all or nothing’ type of presentation.

–       Third complaint, alleging distortion of the evidence submitted to the Court of First Instance

388. In the appellant’s submission, the Court of First Instance distorted the appellant’s explanation and also the facts resulting from the file relating to its participation in the cartel. The appellant never claimed to have distanced itself from the cartel, but consistently emphasised the modest role which it played in the cartel.

–       Fourth complaint, alleging a contradiction in the grounds of the judgment

389. In ÖVAG’s submission, the Court of First Instance’s analysis is contradictory in so far as the appellant is characterised as a ‘large bank’ and as the ‘representative of a sector’, although the Commission did not carry out any inspection at its premises, the appellant was not part of the ‘narrower banking circle’ and it participated in only a limited number of meetings.

390. The Commission contends that these complaints are irrelevant, owing to the fact that it is not for the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance.

ii)    Assessment

391. I consider that this first part must be rejected in its entirety.

392. As regards the first complaint, I consider that the way in which the Court of First Instance exercised its power of review is not open to criticism. It will be recalled that in the context of the review of legality of a contested decision, the Court of First Instance exercises a limited power of review, which must take account of the margin of assessment which the Commission enjoys when fixing the amount of fines. In the examination of ÖVAG’s complaints, review by the Court of First Instance was therefore limited to ascertaining that the rules of procedure had been complied with, and also to ensuring that the facts were correct and that there was no error of law, manifest error of assessment or misuse of powers. In that regard, the Court of First Instance stated, at paragraphs 484 and 487 of the judgment under appeal, that ÖVAG had not demonstrated that the Commission had made errors of fact or a manifest error of assessment or that it had misused its powers in the context of its analysis.

393. Contrary to the appellant’s contention, the Court of First Instance did not merely reproduce the Guidelines, since it clearly referred, at paragraphs 482 and 486 of the judgment under appeal, to the applicable case-law, before examining, at paragraphs 483 to 489 of that judgment, the way in which the Commission had taken account of the conduct of each of the undertakings, and, in particular, of ÖVAG, in the banking committees.

394. It seems to me, therefore, that this complaint can readily be rejected as unfounded.

395. The second complaint must also be rejected. The assessment criterion which the Court of First Instance used for the purposes of its assessment, namely the criterion based on the participation of the members of the cartel in the meetings, is consistent with settled case-law, expressly referred to at paragraph 482 of the judgment under appeal. That criterion makes it possible to take into account the individual conduct of an undertaking while the cartel is in operation. Furthermore, contrary to ÖVAG’s contention, that criterion is different from the criterion used by the Commission for the purpose of placing the appellants into categories, which was based solely on the undertakings’ economic power.

396. As regards the third complaint, I consider that it is inadmissible, since ÖVAG’s arguments contain no serious element capable of demonstrating that the Court of First Instance distorted its explanation or the evidence in the file relating to ÖVAG’s participation in the cartel. In any event, it is obvious, in my view, that in emphasising its modest role within the banking committees, the appellant sought to demonstrate the distance which it had placed between itself and the other members of the cartel.

397. As regards, last, the fourth complaint, I propose that the Court should reject it immediately as unfounded, since the fact that the Commission did not carry out an unannounced visit at the appellant’s premises is not in any way inconsistent with the fact that it may be characterised as a ‘large bank’ and as having been the ‘representative of the [credit unions] sector’.

398. In light of all of those factors, I consider that the first part of this plea must be rejected as inadmissible in part and unfounded in part.

b)      Second part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the participation of the public authorities in the meetings of the banking committees (144)

i)      Arguments of the parties

399. BA‑CA, in essence, criticises the Court of First Instance for not having taken the participation of certain public authorities in the meetings into account under the head of attenuating circumstances. The Court of First Instance thus breached the principle of equal treatment, in so far as BA-CA was treated differently by comparison with other undertakings concerned by previous Commission decisions.

400. In the appellant’s submission, it follows from the Commission’s practice in previous decisions and from the case-law of the Court that the tolerance of conduct by the national legislature and also the participation of public authorities in meetings constitute an attenuating circumstance and justify a reduction in the amount of the fine, independently of the size of the undertakings concerned. (145) In particular, BA-CA criticises the Court of First Instance for having held, at paragraph 505 of the judgment under appeal, that tolerance of an infringement by the public authorities cannot be taken into consideration ‘having regard in particular to the resources available to the banks to obtain precise and accurate legal information’. The appellant contends that that condition is not consistent with the case-law of the Court and, in particular, its judgment in CIF. (146) Such a condition also gives rise to discrimination against certain undertakings, according to their corporate purpose.

ii)    Assessment

401. I consider that the criticisms formulated by BA-CA are unfounded.

402. First, at paragraph 505 of the judgment under appeal, the Court of First Instance considered that the information produced by the appellants concerning the participation of certain public authorities in the meetings was not sufficient to show reasonable doubt as to the illegality of the committees under Community law. That, to my mind, is a finding which does not fall to be reviewed by the Court of Justice in an appeal, in accordance with the principles which I set out at points 66 to 68 of this Opinion.

403. Second, the fact that the Court of First Instance held that the approval or tolerance of the infringement by the Austrian authorities could not be taken into account under the head of attenuating circumstances is not contrary to the Community case-law and in my view does not breach the principle of equal treatment.

404. I do not consider that the appellant can rely on CIF. In that case, the cartel was facilitated by a national law. It was in those circumstances that the Court held, at paragraph 57 of that judgment, that ‘when the level of the penalty is set the conduct of the undertakings concerned may be assessed inthe light of the national legal framework, which is a mitigating factor’. The present situation is different, since the Austrian law in question, which allowed the banking institutions to collude, was repealed by 1 January 1994 at the latest, that is to say, one year before the infringement period covered by the decision at issue.

405. Nor do I consider that BA-CA can rely on a breach of the principle of equal treatment on account of the fact that it was treated differently by comparison with other undertakings concerned by previous Commission decisions.

406. It will be recalled that the principle of equal treatment is a general principle of law which the Commission is required to observe in a proceeding initiated pursuant to Article 81 EC. According to consistent case-law, it precludes comparable situations being treated differently or different situations being treated in the same way, unless such difference in treatment is objectively justified. (147) In relation to the calculation of fines imposed under Article 15(2) of Regulation No 17, the Community judicature has recognised that a certain difference in the treatment of the undertakings concerned by a Commission decision is inherent in the application of the method chosen by the Guidelines. (148) The Guidelines allow the Commission to tailor the penalty according to the specific conduct and characteristics of the undertakings, in order to ensure the effectiveness of the Community competition rules.

407. Furthermore, it follows from a consistent body of case-law to which the Court referred in JCB Service v Commission that ‘the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether or not there is discrimination’. (149) As the Court stated, any lessons to be learnt from that practice can give only an indication, since the facts of the cases, such as the markets, products, countries, undertakings and periods concerned, are not the same. (150)

408. In those circumstances, it appears to me that any lessons that might be learnt from the Commission’s previous decisions cannot be relied on in the context of the present cases.

409. In light of those factors, I am of the view that the second part of this plea must be rejected as unfounded.

c)      Third part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the public nature of the meetings (151)

i)      Arguments of the parties

410. BA‑CA maintains that the Court of First Instance made various errors of law in not granting any reduction in the fine even though it was established that the banking committees were public knowledge. First, the Court of First Instance wrongly held that the full extent of the cartel was not known to the public, although the numerous materials supplied in the application and, in particular, the press articles showed that the public was aware of the themes of the meetings and of the direct link between the banking committees and changes in interest rates. The Court of First Instance thus breached the principles governing the taking of evidence by not examining in depth the documents produced by the appellant. Second, the Court of First Instance went further than could possibly be required by considering that public opinion must have a perfect knowledge of the meetings in order for a reduction in the fine to be possible. Third, the Court of First Instance incorrectly reproduced the appellant’s explanation, in so far as the appellant did not specifically maintain that the fact that the meetings were known to the public meant that they were lawful.

411. The Commission rejects those assertions. It submits that there is no case-law according to which the participants in a cartel could consider that their practices are lawful because certain conduct is public knowledge. If that were the case, it would be sufficient to make certain practices public knowledge in order to escape pecuniary sanctions. In that regard, the Court of First Instance clearly showed that the fact that a practice is known to the public is not decisive.

ii)    Assessment

412. I propose that the Court should reject this part immediately as inadmissible.

413. BA‑CA seeks, in essence, to challenge a number of findings of fact made by the Court of First Instance at paragraph 506 of the judgment under appeal. The appellant does no more than criticise the Court of First Instance’s conclusions without demonstrating the errors which in its submission led that Court to distort the evidence. Its criticism therefore constitutes merely an attempt to substitute its version of the events for the Court of First Instance’s assessment.

414. In those circumstances, the third part of the plea must in my view be considered inadmissible.

415. In light of all of the foregoing factors, I propose that the Court should hold that the second plea, relating to the Court of First Instance’s analysis with respect to the existence of attenuating circumstances, is inadmissible in part and unfounded in part, and reject the plea.

C –    Third plea, alleging errors of law, breach of the principles of equal treatment, protection of legitimate expectations and the rights of defence, and insufficient and contradictory reasoning with respect to the application of Section D of the Leniency Notice

416. In its Leniency Notice, the Commission defined the conditions under which undertakings which cooperate with it during its investigation into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them (Section A3).

417. As regards the application of the Leniency Notice to the appellants, it is common ground that their conduct falls to be assessed under Section D of that notice, entitled ‘Significant reduction in a fine’.

418. According to Section D1 of that notice, ‘[w]here an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated’.

419. Section D2 of the Leniency Notice states:

‘Such cases may include the following:

–        before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

–        after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

420. As the Court of First Instance observed at paragraph 530 of the judgment under appeal, it follows from settled case-law that a reduction in a fine for cooperation is justified only where the conduct of the undertaking concerned has facilitated the Commission’s task and enabled it to find the infringement with less difficulty and, where appropriate, to bring it to an end.

421. It is also important to bear in mind that, under Article 11(1) of Regulation No 17, the Commission may, inter alia, in carrying out the duties assigned to it by Article 81 EC, obtain all necessary information from the undertakings and associations of undertakings which, pursuant to paragraph 4 of that article, are required to supply the information requested. Where an undertaking or association of undertakings does not supply the information requested within the time-limit fixed by the Commission, or supplies incomplete information, the Commission may, in accordance with Article 11(5) of Regulation No 17, by decision require the information to be supplied and the undertaking or association of undertakings may then, if it persistently refuses to supply the relevant information, incur a fine or periodic penalty payments.

422. In that regard, as the Court of First Instance correctly observed at paragraph 529 of the judgment under appeal, the fact that an undertaking cooperates in an investigation does not entitle it to any reduction in the fine where that cooperation did not go further than what is required of it under Article 11(4) and (5) of Regulation No 17. On the other hand, where, in response to a request for information under Article 11 of Regulation No 17, an undertaking has supplied information well in excess of what the Commission may require under that article, the undertaking in question may benefit from a reduction in the fine.

423. It is in light of those principles that it is appropriate to examine whether the Court of First Instance’s analysis relating to the reduction in the fine granted to the appellants by the Commission in accordance with the first indent of Section D2 of the Leniency Notice is the consequence of an incorrect assessment.

424. In the decision at issue, the Commission evaluated the banks’ cooperation by reference to Section D of the Leniency Notice. It granted the banks a reduction of 10% of their fine, in accordance with Section D1 and the second indent of Section D2 of that notice, on the ground that they had not contested the facts set out in the statement of objections. (152) On the other hand, the Commission refused to grant them a reduction in the fine in accordance with the first indent of Section D2 of that notice, which provides that the fine may be reduced if, ‘before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement’.

425. As regards the responses to the requests for information, the Commission considered that the communication of the dates of committee meetings and the names of the persons who attended them, and also the communication of the documents relating to those meetings, were not voluntary. Consequently, according to the Commission, the communication of that information could not be characterised as ‘cooperation’. (153)

426. As regards the joint exposition of the facts submitted by the banks, the Commission considered that it represented no added value to what was required by law. The Commission recognised that that exposition went further than the information requested by describing in detail the historical background to the ‘Lombard network’ and summarising what had taken place at the various committee meetings. However, in the Commission’s view that exposition served not to clarify the facts, but rather to defend the banks.

427. As regards the documents submitted with the joint exposition of the facts, the Commission observed that the banks were not in a position, when asked by the Commission to do so, to identify the documents which contained new facts by reference to the facts in the documents obtained during the inspections or to those which the banks were required to produce following the requests for information, and concluded that those documents provided no added value. (154)

428. In the judgment under appeal, the Court of First Instance rejected all the pleas alleging failure to have regard to the Leniency Notice. In addition, in light of the gravity of the infringement, the Court of First Instance held that the appellants’ cooperation did not justify any further reduction in the fines imposed on them.

429. In their respective appeals, the appellants take issue with the Court of First Instance for not having properly assessed the extent of their cooperation by reference to the Leniency Notice and for having, in that regard, breached the principles of equal treatment and legitimate expectations. They maintain that they out to have received, in application of Section D of the Leniency Notice, a greater reduction in the fines imposed on them.

1.      First part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the Commission’s power of assessment and the exercise of its own power of review

a)      Arguments of the parties

430. BA‑CA maintains that the Court of First Instance did not correctly appraise the Commission’s margin of discretion in the context of the implementation of the Leniency Notice or the limits of its own power of review. Section D of the Leniency Notice confers no discretion on the Commission with respect to, first, whether the information supplied by the undertaking facilitated the Commission’s task and, second, whether the undertaking which cooperated must be granted a reduction in the fine. Nor is the reference to Dansk Rørindustri and Others v Commission capable of justifying the existence of unlimited discretion on the part of the Commission. Furthermore, and contrary to what the Court of First Instance held at paragraph 532 of the judgment under appeal, the appraisal of an undertaking’s cooperation is subject to unlimited review by the Court of First Instance. In that regard, the appellant refers to Groupe Danone v Commission, where the Court of First Instance agreed to determine whether the reduction in the amount of the fine granted to the undertaking by the Commission in accordance with the first indent of Section D2 of the Leniency Notice was the consequence of an incorrect assessment of the extent of the undertaking’s cooperation, in particular in light of the Commission’s decision-making practice. (155)

b)      Assessment

431. I do not share the appellant’s point of view as regards the margin of discretion which the Commission enjoys in applying the Leniency Notice.

432. As I have stated, the Commission, by virtue of established case-law, has a wide discretion when calculating the amount of the fine. In that context, it may take account of numerous factors on condition that it remains within the limits laid down in Article 15(2) of Regulation No 17. As regards the taking into account of an undertaking’s cooperation in the proceedings, the Court of Justice expressly recognised in Dansk Rørindustri and Others v Commission that ‘[t]he Commission has a discretion in that regard, as may be seen from the very wording of [Section D2 of the Leniency Notice] and, in particular, from the introductory words “Such cases may include …”’. In that judgment, the Court held that, within the limits defined by that notice, the Commission has a discretion to evaluate whether the information or documents voluntarily supplied by the undertakings facilitated its task and whether it is appropriate to grant an undertaking a reduction under that notice. (156)

433. In those circumstances, and as the Court of First Instance observed at paragraph 532 of the judgment under appeal, the Commission’s assessment can therefore be the subject of only limited review by the Court.

434. Last, I would emphasise that in Groupe Danone v Commission the Court of First Instance did indeed examine whether the reduction in the amount of the fine granted by the Commission to the undertaking concerned in accordance with the first indent of Section D2 of the Leniency Notice resulted from an incorrect assessment of the extent of its cooperation and breached the principle of equal treatment. None the less, I would remind the appellant that the Court of First Instance, at paragraph 458 of that judgment, refused to take account of the Commission’s practice in previous decisions, and held that ‘the mere fact that the Commission, in its previous practice when taking decisions, granted a certain rate of reduction for specific conduct does not mean that it is required to grant the same proportionate reduction when assessing similar conduct in a subsequent administrative procedure’.

435. In light of those factors, I therefore propose that the Court should reject this first part as unfounded.

2.      Second part of the plea, alleging errors of law in the application of the Leniency Notice

436. RZB and BA‑CA raise two complaints in support of this part.

a)      First complaint, alleging use of an incorrect assessment criterion and breach of the principle of equal treatment

i)      Arguments of the parties

437. RZB and BA‑CA maintain that the Court of First Instance erred in law in holding that the Commission could require that cooperation provide ‘added value’ in order to qualify for a reduction in the amount of the fine. (157)

438. BA‑CA submits that the Court of First Instance also breached the principle of equal treatment by using that criterion. First, the Court of First Instance ought to have granted it a greater reduction in the amount of its fine, in so far as its cooperation was indisputably greater and qualitatively higher by comparison with the other undertakings. Second, the Court of First Instance was wrong to hold, at paragraph 534 of the judgment under appeal, that the fact that the Commission had, in earlier decisions, granted a certain rate of reduction for particular conduct did not mean that it was required to grant the same proportionate reduction when appraising similar conduct in the context of a subsequent administrative procedure.

ii)    Assessment

439. As regards the arguments of RZB and BA‑CA relating to the use of an incorrect assessment criterion, I propose that the Court, in accordance with the principles set out at point 65 of this Opinion, should reject them immediately as inadmissible. It is apparent from the documents in the file that RZB and BA-CA merely reproduce the arguments which they have already submitted before the Court of First Instance.

440. As regards the argument whereby BA-CA alleges breach of the principle of equal treatment, I consider that it is unfounded.

441. As I have stated, it follows from established case-law that the Commission cannot disregard the principle of equal treatment when appraising the cooperation shown by an undertaking. (158) The principle of equal treatment is a general principle of Community law, which, according to established case-law, is breached when similar situations are treated differently or when different situations are treated in the same way, unless such treatment is objectively justified.

442. None the less, in the context of the calculation of fines imposed under Article 15(2) of Regulation No 17, the Community judicature has recognised that a certain difference in the treatment of the undertakings concerned by a decision of the Commission is inherent in the application of the method chosen by the Guidelines. (159) As regards an undertaking’s cooperation in the procedure, the Court of First Instance has thus held, in Groupe Danone v Commission, that a difference in the treatment of the undertakings concerned may therefore be capable of being ascribed to differences in the degree of cooperation, particularly where different information was provided or that information was supplied at different stages in the administrative procedure or in dissimilar circumstances. (160)

443. In support of its complaint, the appellant criticises the Court of First Instance for not having granted it a greater reduction in accordance with Section D of the Leniency Notice, in so far as it cooperated to a greater degree in the procedure than the other banks concerned. I consider that that argument is not amenable to review by the Court of Justice in an appeal, since the Court would then have to substitute its own assessment for that of the Court of First Instance.

444. In any event, and if the Court should deem that argument admissible, it appears to me that, in light of the margin of discretion available to the Commission, the Court of First Instance was entitled to hold, without making an error of law liable to be reviewed in an appeal, that as the circumstances in which BA-CA cooperated with the investigation could, in principle, have permitted a reduction in the amount of the fine in accordance with Section D of the Leniency Notice, the Commission would not necessarily have had to grant it a greater reduction in the fine for cooperation.

445. Last, contrary to BA-CA’s contention, the Court of First Instance did not err in law in holding, at paragraph 534 of the judgment under appeal, that the Commission is not bound by its practice in previous decisions. As I have already stated at point 407 of this Opinion, it follows from established case-law that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether or not there is discrimination. In those circumstances, I consider that BA-CA cannot rely on a breach of the principle of equal treatment on account of the fact that it was treated differently by comparison with other undertakings concerned by previous Commission decisions.

446. In light of the foregoing, I propose that the Court should deem this first complaint inadmissible in part and unfounded in part.

b)      Second complaint, alleging errors of law with respect to the examination of the extent of the undertakings’ cooperation, breach of the principles of equal treatment, protection of legitimate expectations and respect for the rights of the defence, and insufficient and contradictory reasoning

447. This complaint is raised by RZB and BA‑CA.

448. Subject to the specific aspects linked with their respective situations, RZB and BA-CA maintain, in essence, that the Court of First Instance erred in law in the context of its assessment relating to the cooperation which they provided to the Commission during the various stages of the proceedings. They allege that the Court of First Instance did not correctly apply Article 11 of Regulation No 17 and failed to take account of the Commission’s practice in previous decisions. The Court of First Instance also breached the principles of equal treatment and the protection of legitimate expectations and also the appellants’ rights of defence. Last, the Court of First Instance also provided insufficient and contradictory grounds for the judgment under appeal.

i)      RZB’s first argument, alleging incorrect assessment of the voluntary nature of the responses to the requests for information and breach of the rights of the defence

–       Arguments of the parties

449. RZB criticises the Court of First Instance for not having characterised its responses to the Commission’s request for information as ‘voluntary’, which in its submission ought to have led to a reduction in the fine under the Leniency Notice. The Court of First Instance thus allows the Commission, as soon as it begins to have doubts concerning meetings between competitors, to send requests for information drafted in very vague terms and entailing consequences for the undertakings which fail to respond. The Commission then exercises an irresistible constraint on those undertakings by sending them simple standard questions inducing them to testify against themselves. Such reasoning constitutes a breach of the rights of defence of those undertakings, as established in Orkem v Commission. (161)

450. The Commission contends that RZB disregards the fact that it can take into account the information resulting from ‘voluntary’ cooperation within the meaning of the Leniency Notice only where that information facilitates its task of discovering and penalising the infringement and indicates genuine cooperation. The information supplied by the appellant described only the historical background to the ‘Lombard network’ and what took place at the meetings of the cartel, evidence which was already in the Commission’s possession. There was therefore no added value. Furthermore, the Commission emphasises that it was informed, at the time when it questioned the appellants, that all the banking products were dealt with in numerous committees and that those committees formed part of a network, so that the framework of the infringement and therefore the subject-matter of the investigation were clearly identified, in particular as regards the participating undertakings, the nature of the infringement and the subject-matter of the agreements. Last, the Commission states that the questions related to all the committees which had met on a regular basis, so that the undertakings were not required to select or evaluate the meetings capable of constituting infringements of Article 81 EC.

–       Assessment

451. On 21 September 1998, the Commission sent a request for information to numerous banking institutions suspected of having participated in anti-competitive agreements or practices, in accordance with Article 11(1) and (2) of Regulation No 17.

452. The extent of the requests for information which the Commission sent to the various banks varied between 30 questions (BA-CA) and 3 questions (ÖVAG and Bank der Österreichischen Postsparkasse AG; ‘PSK‑B’). The questions in the more detailed requests for information and to which the banks responded sought to obtain, in particular, information about the participants in the committees (names, undertakings to which they belonged and functions), production of all relevant internal documents and also a description of what took place at the meetings. The requests for information also contained questions of the following type:

‘Please supply all minutes, file notes, correspondence or other documents which refer to meetings, [to] discussions or to other contacts between your undertaking and other Austrian credit institutions in the context of the committees named below or any other committees which took place on a regular basis (whether drafted before, during or after such contacts). Please indicate dates, including dates of the first and last meeting, and those taking part (name, undertaking, function)’ (there followed a list of certain committees).

453. I consider that those criticisms are unfounded.

454. It appears to me that the appellant confuses its obligations vis-à-vis a request for information drawn up by the Commission under Article 11 of Regulation No 17 with the advantages available to it under the Leniency Notice.

455. The appellant’s responses to the Commission’s requests for information come within the framework of the investigative powers conferred on the Commission.

456. Under Article 11(1) to (5) of Regulation No 17, and as established in Orkem v Commission, the Commission is entitled, by means of a decision where appropriate, to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession. (162) That also applies where those documents may serve ‘to establish, against [the undertaking] or another undertaking, the existence of anti-competitive conduct’, on condition that there is no breach of the undertaking’s rights of defence. (163) As the Court of Justice has observed, Regulation No 17 imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation. (164) In the present case, the appellant was not therefore acting within the framework of ‘voluntary’ cooperation in the proceedings, capable of falling within the situations covered by the Leniency Notice.

457. In such a situation, it appears to me that the Court of First Instance was entitled to refuse to characterise the appellant’s contribution as purely ‘voluntary’ and to grant it a reduction in the amount of its fine on the basis of the Leniency Notice.

458. I further consider that the Court of First Instance did not breach the appellant’s rights of defence, in light of the case-law of the Court.

459. I am aware that the need to ensure respect for the rights of the defence is a fundamental principle of the Community legal order which must be observed in administrative procedures in which penalties may be imposed. (165) As the Court observed in Orkem v Commission, those rights must be respected even during the preliminary inquiry, since that inquiry may be decisive in providing evidence of the unlawful nature of conduct engaged in by the undertakings. (166)

460. The Court endeavours to find a balance between the requirements associated with uncovering and penalising anti-competitive agreements and those associated with the necessary respect for the rights of defence of the undertakings being investigated by the Commission.

461. Finding that balance seems to me to be a very delicate matter, as shown by the words used by the Court at paragraph 34 of its judgment in Orkem v Commission, where it stated that ‘whilst the Commission is entitled, in order to preserve the useful effect of Article 11(2) and (5) of Regulation No 17, to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, it may not, by means of a decision calling for information, undermine the rights of defence of the undertakings concerned’. (167) That means, as the Court states at paragraph 35 of that judgment, that ‘the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove’. (168)

462. That case-law, which in certain aspects strikes me as contradictory, shows the difficulties with which the Community judicature may be faced when reviewing respect for the rights of defence of undertakings in procedures of that type.

463. That review must necessarily be exercised on a case-by-case basis. The question that arises is, in particular, what information may be liable to disclose the anti-competitive conduct of the undertakings on the market.

464. The present cases do not appear to raise real difficulties in that regard.

465. The Court has already held that questions relating to meetings of undertakings, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the disclosure of documents relating to those meetings, are not open to criticism. (169)

466. On the other hand, the Court of First Instance has also held that information relating to the purpose of and what occurred at the meetings in which the undertakings participated and also the results or conclusions of those meetings are incompatible with the rights of the defence, since they are liable to compel the undertaking to admit its participation in the infringement. (170)

467. In the present cases, the Court of First Instance observed that the purpose of the Commission’s requests was to obtain purely factual information concerning all the committees, a finding which, it will be recalled, is not amenable to review by the Court of Justice on appeal.

468. Consequently, and in light of the case-law cited above, it appears to me that the Court of First Instance was entitled to hold, at paragraphs 541 and 544 of the judgment under appeal, that the questions put by the Commission were not capable of breaching the appellant’s rights of defence.

469. In light of those considerations, I consider that RZB’s first argument, alleging incorrect assessment of the voluntary nature of the responses to the requests for information, must be rejected as unfounded.

ii)    Second argument, alleging errors of law in relation to the assessment of the joint exposition of the facts

–       Arguments of the parties

470. This second argument is put forward by RZB and BA‑CA.

471. First, those two undertakings maintain that the Court of First Instance erred in law in considering, at paragraph 556 of the judgment under appeal, that contextual explanations dealing with practices contrary to competition law cannot be regarded as cooperation in the proceedings within the meaning of the Leniency Notice, on the ground that they may constitute a means of defence for the undertakings. BA-CA contends that there is no rule of law that a document which the parties use to defend themselves cannot at the same time provide the Commission with valuable and substantively useful information which assists it in finding the infringement.

472. Second, RZB claims that the Court of First Instance’s analysis is incorrect, since the Commission’s reasoning is contrary to its own practice in previous decisions. The appellant refers in that regard to Sections IIA, paragraph 9(a), and IV of the 2006 Leniency Notice. (171)

473. Third, BA-CA maintains that the Court of First Instance erred in holding that the Commission, when assessing the usefulness of the banks’ voluntary cooperation, could take into account the fact that the banks had not supplied to it, with the joint exposition of the facts, ‘all the documents relating to the committees’. BA-CA submits that there is no rule to that effect. Furthermore, in view of the extent of the infringement, the appellant could supply those documents only in stages over time.

474. Fourth, BA-CA claims that the judgment under appeal is vitiated by a contradiction. Although the joint exposition of the facts contributed to the finding of the infringement, the Court of First Instance did not grant any reduction in the fine in favour of the appellant.

–       Assessment

475. In essence, RZB and BA-CA criticise the Court of First Instance for not having censured the Commission’s assessment that the banks used the joint exposition of the facts as a means of defence. I propose that the Court should reject that argument outright as unfounded, since it is for the Commission alone to assess the extent to which the undertakings were able to cooperate in the procedure by providing a joint exposition of the facts and the Court of First Instance merely respected the Commission’s discretion in that matter.

476. As regards RZB’s second argument, I also propose that the Court should not uphold it. First, as I have already stated, the Commission is not bound by its practice in previous decisions. Second, RZB cannot rely on the terms of the Leniency Notice which was adopted by the Commission in 2006, that is to say, four years after it adopted the decision at issue.

477. As regards the third argument put forward by BA-CA, it, too, should be rejected. The Court of First Instance was entitled to rely on the Commission’s discretion in that matter and to hold on that basis that the Commission was entitled, for the purpose of assessing the usefulness of the undertakings’ cooperation, to take account of the incomplete nature of the annexes to the joint exposition of the facts.

478. In light of those factors, I consider that the Court of First Instance’s analysis relating to the joint exposition of the facts supplied by the appellants is not vitiated by any error of law and does not contain any contradiction.

479. Consequently, I propose that the Court should reject in their entirety the criticisms formulated in that regard by RZB and BA‑CA.

iii) Third argument, alleging incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement and breach of the principle of equal treatment

–       Arguments of the parties

480. RZB criticises the Court of First Instance for having disregarded, at paragraph 559 of the judgment under appeal, the specific value of its admission, although the Commission had expressly referred to it in its analysis. The Court of First Instance’s reasoning is inconsistent with its case-law, since it recognised in Krupp Thyssen Stainless and Acciai speciali Terni v Commission that recognition by an undertaking of the existence of an unlawful cartel makes the Commission’s work easier. Furthermore, the Court of First Instance’s analysis amounts to disregarding the principle of equal treatment, since, in spite of its admissions, RZB was treated in the same way as the other banks. The appellant then invites the Court of Justice to declare that the fine imposed on it must be reduced by at least 10%.

481. The Commission contends that the essential condition for obtaining a reduction in the fine of more than 10% was not satisfied, as it already had the documents necessary in order to establish the essential facts. It emphasises that the Leniency Notice constitutes an investigative mechanism which offers financial incentives and not a measure of gratification in the interest of the undertakings which agree to cooperate with the Commission, and observes that it has a discretion as to whether particular information contributes to confirming the existence of an infringement.

–       Assessment

482. I consider that this argument must be rejected too.

483. It is true that the Court of First Instance acknowledged in Krupp Thyssen Stainless and Acciai speciali Terni v Commission that ‘admission of the existence of a cartel facilitates the Commission’s work in an investigation more than the mere admission of the materiality of the facts’. (172) That is a statement of principle that must none the less be applied in each individual case, as the Court of First Instance expressly recognised at paragraph 559 of the judgment under appeal. The Court of First Instance took account of the discretion conferred on the Commission with respect to the cooperation provided by the undertakings in the procedure. To my mind, therefore, the Court of First Instance was entitled, without making any error of law amenable to review at the appeal stage, to consider that it was for the Commission to appraise, in each individual case, whether such an admission actually made its task easier.

484. As regards, moreover, RZB’s argument alleging breach of the principle of equal treatment in that it was treated in the same way as the other banks, in spite of its admissions, it cannot in my view succeed.

485. It follows from the judgment under appeal that the appellant’s admissions did not make the Commission’s task easier, which is the criterion on the basis of which a reduction in the fine may be ordered. In those circumstances, I consider that the Court of First Instance was entitled to take the view that the Commission was not required to treat that undertaking differently from the others by granting it, in that regard, an additional reduction in the amount of its fine.

iv)    Fourth argument, alleging reversal of the burden of proof concerning the value of RZB’s cooperation and breach of the principle of protection of legitimate expectations

–       Arguments of the parties

486. RZB criticises the Court of First Instance for having reversed the burden of proof in holding, at paragraphs 546 to 551 of the judgment under appeal, that, in order to obtain a reduction in its fine of more than 10%, the appellant ought to have established that the Commission was not in a position to prove the infringement without the evidence supplied. The appellant maintains, first, that that analysis is contrary to the second indent of Section D2 of the Leniency Notice and, in consequence, breaches the principle of protection of legitimate expectations; and, second, that the Court of First Instance’s analysis cannot be reconciled with the Commission’s obligation to establish, in administrative procedures, both the favourable facts and the adverse facts.

–       Assessment

487. I propose that the Court should reject this argument. It appears to me that RZB is again confusing the procedure laid down in Article 11 of Regulation No 17, on the requests for information that the Commission may formulate in the context of its investigation, and the cases in which RZB may benefit from a reduction in its fine in the context of the Leniency Notice.

488. RZB disputes the reasoning which the Court of First Instance adopted at paragraph 551 of the judgment under appeal. That reasoning concerns the responses to the Commission’s requests for information under Regulation No 17. The appellant cannot therefore rely on a failure to observe the wording of the Leniency Notice or, a fortiori, on a breach of the principle of legitimate expectations.

489. Nor can RZB maintain that the Court of First Instance’s analysis is contrary to the procedural rules applicable to the burden of proof and the taking of evidence.

490. The Leniency Notice is an investigative mechanism which enables the Commission to obtain information about an alleged infringement of competition law by offering undertakings a financial incentive to cooperate in the procedure. As was stated at points 420 and 422 of this Opinion, when cooperation by an undertaking falls within the framework of a request for information formulated under Article 11 of Regulation No 17, that undertaking can obtain a reduction in its fine only if the information which it supplies goes further than the information which the Commission can require it to produce under that provision. The conduct of that undertaking must facilitate the Commission’s task and enable it to find the infringement with less difficulty.

491. In those circumstances, and although it is in fact for the Commission to provide proof of an infringement of Article 81(1) EC which it finds, (173) it is, on the other hand, for the undertaking which requests a reduction in the amount of its fine to demonstrate that its cooperation helped the Commission to carry out its task.

492. Thus, in holding at paragraph 551 of the judgment under appeal that ‘the applicants have not established that the documents produced in response to the requests for information were necessary to enable the Commission to identify all the essential committees, or that, without them, the evidence obtained through the investigations would have been insufficient to prove the essential elements of the infringement and to enable a decision imposing fines to be adopted’, the Court of First Instance did not in any way reverse the burden of proof and place it on the appellants.

493. RZB’s fourth argument therefore seems to me to be unfounded.

v)      Fifth argument, alleging errors of law and contradictory reasoning in the Court of First Instance’s analysis of the value of the additional documents submitted by BA‑CA

–       Arguments of the parties

494. BA‑CA contests, in essence, the Court of First Instance’s assessment concerning the value of the 33 files, containing more than 10 000 pages, which it sent to the Commission.

495. In the first place, BA-CA maintains that the Court of First Instance reduced the value of its cooperation by unceasingly reinforcing the requirements which it had to satisfy in order to benefit from a reduction in the fine. The appellant criticises, in particular, the comparison which the Court of First Instance drew between the value to be given to those documents and the value to be given to the joint exposition of the facts.

496. In the second place, the appellant claims that the Court of First Instance’s arguments are contradictory, since that Court refuses, by reference to the joint exposition of the facts, to grant a reduction in the fine in the absence of fresh documents, although it is established that, in the context of the voluntary production of documents, the appellant submitted 10 000 pages of new documents, some of which were incontestably used within the framework of the decision at issue.

497. The Commission contends that that argument is inadmissible, in that it reproduces an argument already put forward before the Court of First Instance. The Commission emphasises, moreover, that the fact that documents are new, that is to say, that they have not yet been produced, does not in itself suffice for those documents to constitute a useful contribution under the head of cooperation.

–       Assessment

498. At paragraph 560 of the judgment under appeal, the Court of First Instance held that the production of additional documents by one of the banks could justify a further reduction in its fine only if that cooperation actually involved the production of new and useful information by comparison with that produced in the context of the joint exposition of the facts provided by all the undertakings.

499. That analysis seems to me to be perfectly logical and coherent, in so far as the value of voluntary cooperation depends above all on the relevance of the documents produced and the usefulness of those documents to the finding of the infringement.

500. Nor does that analysis seem to me to be vitiated by any contradiction. Contrary to BA-CA’s contention, the Court of First Instance did not refuse to reduce the amount of the appellants’ fines on the ground that the joint exposition of the facts contained no new material. It merely held, as is apparent from paragraphs 552 to 558 of the judgment under appeal, that the Commission had made no manifest error of assessment in not granting any additional reduction on the ground that that exposition did not facilitate its work.

501. Whether in the context of its assessment relating to the joint exposition of the facts or in the context of its examination of the additional documents submitted by BA-CA, the Court of First Instance adopted perfectly coherent reasoning, based on one and the same criterion, namely the usefulness for the Commission’s work and the relevance of the information submitted by the appellants.

502. In those circumstances, it seems to me that the Court of First Instance’s analysis is not open to criticism by the appellant and I propose that the Court should reject this fifth argument as unfounded.

vi)    Sixth argument, alleging failure to take BA-CA’s responses to the statement of objections into consideration

–       Arguments of the parties

503. BA‑CA disputes the Court of First Instance’s assessment, set out at paragraph 564 of the judgment under appeal, that the Commission was not required to take account, under the head of cooperation, of its response to the statement of objections. By that means, the appellant supplied proof of the exchanges of information within the decentralised sectors, which enabled the Commission to find the infringement. Nor, in BA-CA’s submission, is there anything to preclude cooperation by an undertaking after the statement of objections has been sent.

–       Assessment

504. I consider that this argument is inadmissible, since BA-CA merely reproduces verbatim an argument which it has already submitted to the Court of First Instance. In light of the principles which I recalled at point 65 of this Opinion, the argument is not therefore amenable to review by the Court in the context of this appeal.

505. In light of the foregoing factors, I consider that the second part, alleging errors of law in the application of the Leniency Notice, must be rejected as inadmissible in part and unfounded in part.

3.      Third part of the plea, alleging failure to respect the rights of the defence in that they include the right to be heard

a)      Arguments of the parties

506. BA‑CA maintains that the Court of First Instance failed to have regard to the scope of its right to be heard by refusing to examine a witness, in fact a Commission official, who would have enabled the Court of First Instance to make a better assessment of the appellant’s cooperation in the procedure by means of the documents which it communicated.

b)      Assessment

507. I am of the view that this part should be rejected.

508. At paragraph 563 of the judgment under appeal, the Court of First Instance did not grant that procedural request on the ground that ‘that call for evidence [was] not directly relevant to assessing the usefulness of those documents’. By way of preliminary observation, the Court of First Instance stated that the use of the documents would not in itself demonstrate that their production had made the Commission’s task substantially easier.

509. It follows from established case-law that the Court of First Instance is the sole judge of any need for the information available to it concerning the cases before it to be supplemented. Whether or not the evidence before it is convincing is a matter to be appraised by it alone. According to the Court of Justice, that appraisal is not subject to review by it on appeal, unless the parties claim that the evidence submitted to the Court of First Instance has been distorted or that the substantive inaccuracy of that Court’s findings is apparent from the documents in the case-file. (174)

510. There is nothing in BA-CA’s appeal to indicate that that is the position in this case. In those circumstances, I consider that the Court of First Instance cannot be criticised for not having accepted the appellant’s offer to adduce evidence.

511. In consequence, I am of the view that the third part of the third plea is unfounded and must be rejected.

512. In light of all the foregoing factors, I propose that the Court should declare the third plea, relating to the Court of First Instance’s assessment concerning the undertakings’ cooperation in the procedure, unfounded in part and inadmissible in part, and reject it.

D –    Fourth plea, alleging breach of the rights of the defence in that they include the right to be heard and of the Court of First Instance’s duty to state reasons with respect to its findings on the requests for a reduction in the fines

1.      Arguments of the parties

513. In its appeal, BA-CA criticises the general findings of the Court of First Instance as regards all the requests for a reduction in the fines. It maintains that, in so far as the Court of First Instance disclosed its own considerations as to the amount of the fines to be imposed, the appellant ought to have been heard.

514. The Commission observes that the considerations set out at paragraph 566 of the judgment under appeal are merely further and final considerations, explaining the Court of First Instance’s findings.

2.      Assessment

515. At paragraph 566 of the judgment under appeal, the Court of First Instance observed that, ‘in view of the gravity of the infringement, by reference to which the level of the fines set by the Commission seems relatively low, the Court considers, in the exercise of its unlimited jurisdiction, that the applicants’ cooperation does not in this case justify any additional reduction of the fines imposed on them’.

516. At paragraph 570 of that judgment, moreover, the Court of First Instance stated that the appellants’ pleas for reduction of the fines on the basis of a review of legality must be rejected and that in its view there was no reason to reduce the fine on other grounds in the exercise of its unlimited jurisdiction.

517. I do not consider that the Court of First Instance was required, before setting out its findings, to invite BA-CA to submit its observations. I consider, in effect, that the appellant was given the proper opportunity to put forward its point of view as regards the fixing of the amount of the fine.

518. That is apparent, in the first place, from BA-CA’s arguments before the Court of First Instance; in the second place, from the questions put by that Court; and, in the third place, from the considerations set out in the judgment under appeal.

519. In the first place, I would observe that four of the six pleas in law formulated by the appellant before the Court of First Instance sought a reduction in the amount of the fine. Those pleas related, in particular, to the Commission’s findings with respect to the characterisation of the infringement, to the existence of attenuating circumstances and to the appellant’s cooperation in the procedure.

520. In the second place, I note that the Court of First Instance put numerous questions to the appellant, to be answered in writing, concerning the existence of attenuating circumstances and the appellant’s cooperation in the procedure.

521. In the third place, in the judgment under appeal, and in light of all the arguments before it, the Court of First Instance examined in great detail all the relevant elements pertaining to the fixing of the amount of the fine.

522. Thus, at paragraphs 216 to 571 of the judgment under appeal, the Court of First Instance examined all the claims for a reduction in the fines imposed. First of all, at paragraph 217 et seq. of that judgment, the Court of First Instance confirmed that the Guidelines and the Leniency Notice were applicable. It then confirmed, at paragraph 315 of that judgment, that the infringement committed by the appellants was very serious. On that basis, the Court of First Instance ruled, at paragraph 463 of the judgment under appeal, on the division of the undertakings into categories by the Commission and, at paragraph 468 of that judgment, on the increase in the fines which the Commission had applied on account of the duration of the infringement. Then, at paragraph 511 of the judgment, the Court of First Instance rejected all the complaints raised by the appellants concerning the Commission’s appraisal of the attenuating circumstances and also, at paragraph 565 of the judgment under appeal, all the pleas alleging failure to have regard to the Leniency Notice.

523. In those circumstances, it appears to me that BA-CA was able to explain in the appropriate manner its point of view concerning all the relevant elements relating to the fixing of the amount of the fine.

524. In consequence, I propose that the Court should reject this fourth plea, since it is unfounded.

X –  The consequences of the judgment under appeal being set aside

525. As I have stated, I propose that the Court should set aside the judgment under appeal in that the Court of First Instance made two errors of law in the context of the assessment of the gravity of the infringement for the purpose of calculating the basic amount of the fines.

526. I consider that the Court of First Instance made a first error of law in holding that the Commission could rely on the implementation of the cartel to conclude that the infringement had had an actual impact on the market. I consider, moreover, that it made a second error of law, and vitiated the judgment under appeal by a contradiction in the grounds, in holding that, in attributing to Erste, to RZB and to ÖVAG the market shares of the banks in their decentralised sectors, the Commission penalised them only for their own conduct.

527. Since to my mind the state of the proceedings permits, I propose that the Court, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, should itself give final judgment on those two pleas for annulment raised before the Court of First Instance.

A –    First plea, alleging incorrect assessment of the gravity of the infringement and of the basic amount of the fine, taking into account the fact that the cartel was not shown to have had an actual impact on the market

1.      Arguments of the parties

528. In their actions for annulment before the Court of First Instance, all the banks concerned challenged the way in which the Commission determined the basic amount of the fines. (175) They claimed that the infringement was wrongly characterised as very serious. The appellants criticise, in particular, the Commission for not having examined the actual impact of the infringement on the relevant markets and for having merely asserted, on the basis of the mere allegation that the cartel had been implemented, that it had had an impact on the market, without examining the size of the market, in breach of the Guidelines. Consequently, they claim that the basic amount of the fine was incorrect.

2.      Assessment

529. I consider that this plea is well founded, for the following reasons.

530. In the decision at issue, the Commission characterises the infringement as very serious after taking into account the nature of the infringement, its geographic scope and the fact that the cartel had an effect on the market. That factor was taken into account for the purpose of the characterisation of the infringement and therefore in the determination of the starting amount of the fine. That position is borne out by a mere literal reading of the decision at issue.

531. At recital 430 to the decision at issue, the Commission finds that there has been an actual effect on the banking market resulting, in this particular case, from the implementation of the collusive agreements, although it states at recital 436 to that decision that it is not possible to quantify the effect precisely, that is to say, to determine what rates and charges/fees the banks would have applied in the absence of an agreement. The actual effects of the cartel taken into account for the purpose of calculating the fine are set out at recitals 508 to 510 to that decision. Those recitals refer to recitals 410 and 430 to 436 to the decision at issue, which merely describe, for the purposes of the application of Article 81(1) EC, the way in which the banks applied the agreements at issue.

532. Recital 431 to the decision at issue refers to specific examples of the implementation of the decisions of the cartel, such as the reduction in lending interest rates or changes in savings interest rates. Recital 432 to that decision explains that the banks used, to that end, knowledge obtained during the discussions and recital 433 to that decision states that the banks themselves assessed the actual implementation of their agreements. At recital 434 to the decision at issue, the Commission observes that if the meetings had been entirely ineffectual, the banks would not have met regularly and so often. Last, at recital 435 to that decision, the Commission observes that the competition-restricting effect of the exchanges of information on calculation methods and parameters must be deemed to be all the more significant as the banks’ interest margins are thin.

533. There is no indication in the decision at issue that the Commission sought, so far as possible, to examine separately the implementation of the cartel and its actual impact on the market. It appears to me that in its analysis the Commission makes no mention of any objective economic factor that would make it possible to measure, in the strict meaning of the word, the actual impact of the agreement on the Austrian market for banking products and services. At no point is there any reference to the situation of the market or the prices and bank charges/fees applied before the infringement was committed and after it was implemented. In those circumstances, it is effectively difficult to demonstrate to what extent the implementation of the agreements was able to have a real influence on the structure of the market or the level of prices which the cartel at issue sought precisely to control. (176) Furthermore, the indication set out at recital 434 to the decision at issue, based on the regular meetings of the banks, is to my mind mere conjecture.

534. In light of those factors, I consider that the Commission did not demonstrate to the requisite legal standard and for the purpose of calculating the amount of the fine that the cartel had an actual impact on the market for banking products and services during the period between January 1995 and June 1998.

535. It is now appropriate to analyse the scope of that conclusion with respect to the characterisation of the infringement and to the basic amount determined by the Commission.

536. I consider, first, that the error of assessment made by the Commission has no impact on the characterisation of the infringement as very serious.

537. In effect, for the reasons which I have already explained at points 259 to 261 of this Opinion, price-fixing agreements, such as those at issue, may by reason of their actual nature constitute a very serious infringement, independently of their actual impact on the market and of the size of the relevant geographic market. In that regard, it should be borne in mind that those agreements are among the examples of concerted practices expressly declared in Article 81(1)(a) EC to be incompatible with the common market. Apart from seriously altering the pattern of competition, those agreements, in that they require the parties to comply with prices, set up barriers to market entry, thus frustrating the main objective of the EC Treaty, the integration of the Community market.

538. Furthermore, it appears to me that the Commission did not treat the criterion that the infringement must have an actual impact on the market as being of primary importance when fixing the starting amount of the fine. It also based its assessment on other factors, namely the finding that the infringement should by its nature be characterised as very serious (recitals 506 and 507 to the decision at issue) and the extent to which the undertakings concerned, owing to their economic capacity, could distort competition (recitals 515 to 519 to the decision at issue).

539. I consider, accordingly, that the Commission was entitled to characterise the infringement as very serious.

540. On the other hand, I consider that the fact that the Commission did not demonstrate the alleged effects of the infringement on the market calls in question the assessment of the starting amount of the fine fixed by reference to the gravity of the infringement. As I have explained above, the Commission determined the basic amount of the fine by reference to the gravity of the infringement in consideration of the fact that the infringement had in its view had effects on the market, whereas it was not demonstrated that there was such an impact while the cartel was in operation.

541. In those circumstances, I propose that the Court should uphold this plea and, in the exercise of its unlimited jurisdiction, amend the starting amount of the fines which the Commission fixed for the appellants at recital 520 to the decision at issue.

542. To that end, it is necessary to describe the method which the Commission adopted in order to calculate the amount of those fines.

543. It follows from recitals 515 to 519 to the decision at issue that the Commission weighted the amount of the fine fixed in the Guidelines, for cases of very serious infringements, at EUR 20 million, in order to take account, first, of the actual impact of the infringement on the market and, second, of the effective economic capacity of each undertaking and in order to ensure that the fine would be sufficiently deterrent. (177)

544. In that regard, it follows from recital 519 to the decision at issue that the Commission placed the undertakings in five categories on the basis of the available information on their market shares. Furthermore, as it stated at paragraph 143 of its defence, the Commission fixed guide values for each category of undertakings, around which the market shares of the undertakings concerned were situated. It follows from recital 520 to the decision at issue that it also fixed a set amount of fine for each category of undertakings.

545. In that regard, the Court of First Instance held that, in accordance with the case-law, the differences between the guide values were coherent and objectively justified as regards the first to fourth categories. (178) As for the fifth category, the Court of First Instance considered, at paragraphs 424 to 427 of the judgment under appeal, that the Commission had not exceeded its discretion in placing all the undertakings with a market share of less than 1% in that category, in spite of the differences in their sizes.

546. The following is the basis of the Commission’s calculation:

	Guide values of market shares	Basic amount of the fine      (million EUR)
Category I (GiroCredit/Erste and RZB)	> 22%	25
Category II (BA and CA)	11%	12.5
Category III (Erste before the merger with GiroCredit, BAWAG and ÖVAG)	5.5%	6.25
Category IV (PSK and PSK‑B)	2.75%	3.13
Category V (NÖ‑Hypo and RBW/RLB)	< 1%	1.25

547. I do not know to what extent the Commission took account of the criterion based on the actual impact of the infringement on the market for the purpose of calculating the basic amount of the fine. I do not know what part that criterion played by comparison with the other two criteria based on the economic weight of the undertaking and the deterrent nature of the fine. In those circumstances, I consider that the increase applied by the Commission constitutes an indivisible whole.

548. As regards, first, the undertakings in the first category, namely GiroCredit/Erste (post-merger) and RZB, I note that the basic amount fixed at EUR 20 million for very serious infringements was increased by EUR 5 million in order to take those three criteria into account. In order to cancel the effects linked with the increase in the fine resulting from the incorrect taking into account of the criterion based on the actual impact of the infringement, and in light of the observations which I have just made, I propose that the Court should reduce that amount to EUR 20 million, that is to say, the likely amount for a very serious infringement.

549. As regards, second, the undertakings in the other categories, which include BA-CA and ÖVAG, I note that that threshold was significantly reduced on account of the lesser economic weight of those undertakings. I propose that the Court should apply to them a rate of reduction equivalent to that which I propose be applied for the undertakings in the first category, that is to say, a reduction of one fifth of the basic amount of the fine.

550. I therefore propose that, in light of the absence of an actual impact on the market by the infringement, the Court should amend the basic amounts of the fines imposed by the Commission on Erste, on RZB, on BA‑CA and on ÖVAG to reflect the gravity of the infringement as follows:

	Addresses of the decision at issue		Basic amount of the fine in the absence of an actual impact of the infringement on the market (million EUR)
Category I Category II Category III	GiroCredit/Erste (post-merger)		20
		RZB		20
			BA		10
				CA		10
					Erste (EÖ before the merger with GiroCredit)		5
						ÖVAG		5

B –    Second plea, alleging incorrect assessment as regards the classification into categories of Erste, RZB and ÖVAG for the purposes of the assessment of the gravity of the infringement and of the calculation of the basic amount of the fine

551. In the actions for annulment which they brought before the Court of First Instance, Erste, RZB and ÖVAG maintained that their division into categories was unlawful, in so far as the Commission had attributed to them, as lead institutions of the decentralised savings banks, Raiffeisen and credit unions sectors, respectively, the market shares of their entire sectors.

1.      The decision at issue

552. The decision at issue justifies the attribution to the central institutions of the market shares of their respective decentralised sectors by the following considerations:

‘(515) The infringement is thus to be classified as a very serious one; within that category, the scale of the fines to be imposed makes it possible to differentiate between offenders so as to take account of their effective economic capacity. At the same time [that scale] allows a fine to be set at a level which ensures that it has a sufficiently dissuasive effect. A differentiated approach of this kind is especially desirable here, because there is a wide variation in the size of the undertakings or groupings that took part in the infringement.

(516) In this case account has to be taken of the special features of the Austrian market. It would be quite unrealistic to confine the importance of Erste, RZB and ÖVAG in the network, and their effective capacity to restrict competition at the expense of consumers, to the volume of their own individual business as commercial banks.

(517) The documents in the case make it impressively clear that these undertakings, in line with their role as leaders of their respective groupings, made an essential contribution to the effectiveness of the network throughout Austria via intensive flows of information within those groupings. They did not represent their own interests only, but those of their groupings as well, and were regarded as representatives of their groupings by the other parties to the cartel. The agreements were not just between the individual institutions but between the groupings as a whole.

(518) To ignore the groupings behind the institutions that headed them, that is to say the savings banks grouping, the agricultural credit cooperative grouping and the credit union grouping, would result in the fines being set at a level which did not do justice to the facts, which was out of touch with reality, and which had no dissuasive effect. The dissuasive effect will be sufficient only if in future the lead institutions refrain from engaging in cartel conduct as representatives of their groupings.’

553. At recital 519 to the decision at issue, the Commission therefore placed GiroCredit/Erste and also RZB in the first category and ÖVAG in the third category, and calculated the basic amount of their fines accordingly.

2.      Summary of the arguments of the parties (179)

554. In the first place, Erste, RZB and ÖVAG assert that the Commission disregarded, in legal terms, the conditions on which the attribution of one undertaking’s market share to another undertaking for the purpose of calculating the fine is permissible. They submit that the attribution to the central institutions of the market shares of the banks in their respective decentralised sectors amounts to the imputation to the central institutions of the conduct of all of those banks. They maintain that that imputation has no legal basis and is contrary to the personal nature of liability for infringements of competition law, since the sectors cannot be regarded as economic units.

555. In the second place, Erste and ÖVAG claim that the Commission has breached their rights of defence and the obligation to state reasons. Erste criticises the Commission for having breached its rights of defence, in so far as the statement of objections did not mention the Commission’s intention to impute to the central institutions the market shares of their groupings. In addition, Erste and ÖVAG claim that neither the alleged transmission of information to the decentralised banks nor the alleged representation of those banks by the lead institutions was mentioned in the statement of objections.

556. In the third place, Erste, RZB and ÖVAG dispute the findings of fact on which the Commission relied in order to justify the attribution of the market shares and the assessment of those facts. In essence, they criticise the Commission for having disregarded the legal and economic independence of the decentralised banks and emphasise that they cannot give instructions to the institutions in their sectors.

557. As regards the exchanges of information between the lead institutions and the decentralised banks, RZB acknowledges that such an exchange of information did take place within its sector, but it denies that internal information and representation mechanisms were specially set up for the purpose of implementing the agreements.

558. In addition, Erste and RZB dispute the findings, set out in particular at recitals 61 and 517 to the decision at issue, that they were ‘representatives’ of their decentralised sectors and/or were regarded as such by the other banks. Last, Erste claims that the Commission could not rely on the alleged influence of the committees in Vienna over those existing at regional level to justify the imputation at issue.

559. The Commission contends above all that a distinction must be drawn between the imputation of the unlawful conduct of one undertaking to another undertaking and the classification of the undertakings into categories for the purpose of determining the starting amount of the fine, and it asserts that it penalised each of the lead institutions only for its own conduct, that is to say, for its contribution to the functioning of the cartel throughout Austrian territory by transmitting information to the institutions in its decentralised sector or originating in those institutions. The Commission maintains that the arguments based on the absence of an economic unit and on the rules applicable to associations of undertakings are therefore irrelevant. In its submission, the taking into consideration of the market shares was justified, under the Guidelines, by the need to take into account the effective capacity of the lead institutions to harm competition. Last, it claims that the lead institutions, with their groupings, form units carrying out a joint economic activity, comparable to economic units.

3.      Assessment

560. I consider that the first complaint raised by Erste, RZB and ÖVAG is well founded.

561. In effect, I consider that the Commission was not entitled to calculate the amount of the penalty which it proposed to impose on those undertakings, as lead institutions, by attributing to them the market shares of the banks in their decentralised sectors, when it did not impute to them the unlawful conduct of those banks.

562. Under the fourth paragraph of Section 1A of the Guidelines, the Commission can take into consideration only ‘the effective economic capacity of offenders’ for the purpose of calculating the basic amount of the fine.

563. However, it is apparent from the decision at issue that the Commission did not bring proceedings under Article 81(1) EC against the banks in the decentralised sectors, with the exception of RLB, one of the eight regional banks in the Raiffeisen sector.

564. It is also apparent from that decision that the Commission also had no intention of imputing responsibility for any infringements which the banks in the decentralised sectors might have committed to the lead institutions.

565. In effect, the decision is addressed solely to Erste, to RZB and to ÖVAG, as central institutions, but it is not directed at them as representatives, acting on behalf of the banks in their decentralised sectors.

566. That is amply demonstrated by a simple reading of recital 9 to the decision at issue, which refers to the credit institutions to which that decision is addressed:

‘(b)      [Erste]

Since it merged with GiroCredit Bank Aktiengesellschaft der Sparkassen on 4 October 1997, Erste has been the lead institution in the savings bank grouping [[w]ithin the savings bank grouping there are special links which confer on it a group-like structure. In its capacity as lead institution, Erste is required to perform various services for the savings banks affiliated to it, which result in a dense network of mutual rights and obligations] … The market share of the savings bank grouping together with Erste comes to approximately 30%. [The market share of Erste on its own comes to approximately 7%.] …

(c)      [RZB]

RZB is the lead institution of the Austrian agricultural credit cooperative grouping. This is three-tiered in structure [[t]he first tier comprises some 615 legally independent local agricultural credit cooperatives. As the second tier they operate at the level of the Austrian provinces eight regional provisional agricultural credit cooperatives (Raiffeisen‑Landesbanken). The third tier consists of RZB, more than 80% of the shares in which are held by the regional banks. The local banks are independent entities not subject to directions from the regional banks and/or RZB]. [It] has a market share of approximately 22% … Besides its function as representative of the agricultural credit cooperative grouping, RZB engages in banking business itself, focusing on foreign business and looking after large customers [the market share of RZB on its own comes to approximately 2%].

…

(f)      [ÖVAG]

ÖVAG is the lead institution in the two-tier credit union sector, which consists of approximately 60 independent credit unions at the primary level. The credit unions cooperate closely in important areas … and are in turn majority shareholders of ÖVAG. The market share of the credit union grouping comes to approximately 7% [the market share of ÖVAG on its own comes to less than 1%]. …

…

(h)      [RLB]

In 1997 [RBW] was merged with, and re-registered as, its principal shareholder RLB [before this, RLB had carried out transactions for its own account to only a very limited extent]. The sphere of activity of RLB/RBW is confined to the federal capital Vienna, where it has a market share of about 5%.’ (180)

567. That extract is informative as regards the entities against which the Commission proposed to bring proceedings under Article 81(1) EC. It permits a better understanding of the structure of the bank groupings and indicates very clearly that certain banks in the decentralised sectors, in this particular case those belonging to the Raiffeisen sector, ‘are independent entities not subject to directions from the regional banks and/or RZB’. (181)

568. It is not apparent from that extract, or even from the elements indicated in the following part the Commission’s analysis, that the lead institutions, with the banks in their decentralised sectors, formed an economic unit and that, owing to their role within the bank groupings, they were able to bind those banks. (182)

569. That is even more apparent from the fact that the Commission brought proceedings against RLB, that is to say, one of the regional banks in the Raiffeisen sector, in its individual capacity, for its participation in the ‘Lombard network’ and imposed on it a fine which it calculated on the basis of the undertaking’s own market shares. As regards the Raiffeisen sector, the Commission therefore specifically brought proceedings against a second-tier bank, operating at regional level, namely RLB, and a third-tier bank, operating at central level, namely RZB.

570. In those circumstances, it was not in my view open to the Commission to take into account the effective economic capacity of the banks in the decentralised sectors, still less to attribute that economic capacity to the lead institutions, which were dealt with for their own conduct.

571. The fact referred to by the Commission at recital 517 to the decision at issue that Erste, RZB and ÖVAG, as lead institutions, contributed to the effectiveness of the network by means of intensive flows of information within those groupings was not a sufficient reason or even a criterion allowing the Commission to attribute to them the market shares of the whole grouping.

572. In effect, there must be a logical and coherent link between the imputation of responsibility for the infringement and the calculation of the penalty for that infringement. Contrary to the Commission’s contention, there are not two separate procedures which should be implemented on the basis of different criteria. The one implies the other and the amount of the penalty can be calculated only on the basis of the factors established vis-à-vis the offender, as specified, in this case, in Article 1 of the decision at issue. In the present cases, the Commission has not demonstrated or even apprehended from the aspect of Article 81(1) EC the exchanges of information which might have taken place between the lead institutions and the banks in their decentralised sectors. By taking those exchanges of information into account at the stage of calculating the fine, the Commission not only altered the nature of the infringement with which the appellants were charged but also aggravated their situation.

573. Such reasoning is clearly without legal basis.

574. That reasoning is also vitiated by a contradiction. I would observe that the Commission brought proceedings, in its individual capacity, against RLB, which is none other than one of the regional banks in the Raiffeisen sector. As stated at recital 519 to the decision at issue, RLB was placed in the fifth category, on the basis of its market share. The Commission therefore took that undertaking’s market shares into consideration twice, first when it attributed to RZB the market shares of all the banks in the Raiffeisen sector and second when it placed RLB in the appropriate category.

575. In light of those factors, I consider that the Commission was therefore not entitled to attribute to Erste, to RZB and to ÖVAG the market shares of the banks in the decentralised sectors for the purpose of their classification into categories. Erste, RZB and ÖVAG can therefore be penalised only for their participation in the cartel as commercial banks and not as lead institutions of their decentralised sectors.

576. Consequently, I consider that the classification of Erste and of RZB in the first category and the classification of ÖVAG in the third category are wrong and that the amount of the fines which the Commission imposed on them is therefore incorrect.

577. In those circumstances, I propose that the Court should uphold the pleas relied on at first instance by those three undertakings, alleging incorrect assessment as regards their classification into categories for the purpose of the calculation of the basic amount of the fine. I also invite the Court to annul Article 3 of the decision at issue in that the Commission calculated the amount of the fines imposed on Erste, on RZB and on ÖVAG on the basis of an incorrect assessment criterion.

578. It is now for the Court to assess the category to which each of those three undertakings belongs and, where appropriate, and in the exercise of its unlimited jurisdiction, to amend the basic amount of the fines imposed on them.

579. It is appropriate, for that purpose, to take as a basis for the calculation the method of analysis used by the Commission and to take account of the correction which I have proposed be made in light of the failure to show that the cartel had an actual impact on the market.

580. As regards the method of analysis used by the Commission, I would recall that the Commission divided the banks and bank groupings concerned into five categories, on the basis of the available data on their market shares. As is apparent from the table which I have set out at point 546 of this Opinion, the Commission also fixed guide values for each category of undertakings, around which the market shares of the undertakings concerned are situated, and also a fixed amount of fine.

581. As regards the market shares of the undertakings concerned, they are given, for the most part, in footnote 17 to the decision at issue. The figures relate to retail banking and corporate banking (lending and deposit sides) and are taken from the Commission decisions adopted with respect to concentrations between banks, (183) from annual reports and also from publications and other publicly available sources. As stated at paragraph 190 of the Commission’s defence, the figures relate to the years 1997 to 1999.

582. By contrast, the decision at issue gives no indication of either the market share of the network of savings banks before it was taken over by Erste or GiroCredit’s own market share before that transaction. It none the less follows from paragraph 145 of the Commission’s defence that the Commission evaluated the first market share at 23%. The Commission’s responses to part (b) of the 12th question put by the Court of First Instance show, moreover, that GiroCredit’s individual market share was evaluated at 4.8% on the basis of the data indicated in Commission Decision IV/M.873 of 11 March 1997, Bank Austria/Creditanstalt. (184)

583. The following are the data available at this stage of the analysis: (185)

	Market shares		Commission’s analysis			Correction No 1
						Market shares taken into account	Category	Fine	Fine where no actual impact
Erste/GiroCredit (post-merger)	Grouping of savings banks, including Erste, post-merger: 30% – Erste: 7% Grouping of savings banks, pre-merger, including GiroCredit: 23% – GiroCredit: 4.8%		30%	I	25	20
RZB	Raiffeisen grouping: 22% – RZB: 2%		22%	I	25	20
Erste (EÖ pre-merger)	7%		7%	III	6.25	5
ÖVAG	Grouping of credit unions: 7% ÖVAG: 1%		7%	III	6.25	5

584. It is now appropriate to divide the appellants into categories again in light of their own market shares (correction No 2).

585. As regards Erste/GiroCredit, I consider that, following the acquisition of GiroCredit in October 1997, Erste became responsible for the infringement which GiroCredit committed from 1 January 1995, as a commercial bank and not as the lead institution of the savings banks sector. It is therefore appropriate to take into account Erste’s and GiroCredit’s own market shares, which come in total to 11.8%.

586. I consider, consequently, that Erste/GiroCredit, post-merger, now comes within the second category. For that category, the Commission fixed a fine having a basic amount of EUR 12.5 million, which I have subsequently corrected and reduced to EUR 10 million.

587. As regards RZB and ÖVAG, their market shares come to 2% and 1% respectively. Those two undertakings must to my mind be classified in the fourth category. For that category, the Commission fixed a fine having a basic amount of EUR 3.13 million, which I have subsequently corrected and reduced to EUR 2.5 million in light of the fact that it has not been shown that the cartel had an actual impact on the market.

588. This is the new division into categories of Erste, of RZB and of ÖVAG and also the basic amount of the fine for the gravity of the infringement which in my view ought to be imposed on them:

	Market shares referred to in the decision at issue	Correction No 2
				Market shares to be taken into account	Categories	Basic amount of the fine for gravity of the infringement (million      EUR)
Erste/GiroCredit (post-merger)	Erste: 7% GiroCredit: 4.8%	11.8%	II	10
Erste (EÖ pre-merger)	7%	7%	III	5
RZB	2%	2%	IV	2.5
ÖVAG	1%	1%	IV	2.5

589. I must now determine the final amount of the fine imposed on all the appellants, taking into account, first, the increase applied by the Commission for the duration of the infringement.

590. In that regard, the basic amounts determined in light of the gravity of the infringement were all increased by 35%, with the exception of the fine concerning Erste before its merger with GiroCredit (EÖ). In the case of that undertaking, the Commission imposed an increase of only 30%, since the duration of its participation in the infringement as a commercial bank was only three years. (186)

591. It is appropriate, second, to take account of the fact that the Commission did not recognise any attenuating or aggravating circumstance, (187) but none the less granted a reduction of 10% to each of the addressees of the decision at issue in application of the Leniency Notice. (188)

	Basic amount of the fine for gravity of the infringement (million      EUR)	Basic amount of the fine for gravity and duration of the infringement (million      EUR)	Amount of the fine taking into account the cooperation of the undertakings (million      EUR)
BA	10	13.5	12.15
Erste/GiroCredit (post-merger)	10	13.5	12.15
CA	10	13.5	12.15
Erste (EÖ pre-merger)	5	6.5	5.85
RZB	2.5	3.375	3.037
ÖVAG	2.5	3.375	3.037

592. In light of all of the foregoing factors, I propose that the Court should set the final amount of the fines imposed on BA‑CA, on Erste, on RZB and on ÖVAG as follows:

–        BA‑CA: EUR 24 300 000

–        Erste: EUR 18 000 000

–        RZB: EUR 3 037 000

–        ÖVAG: EUR 3 037 000

XI –  Costs

593. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

594. Under the first subparagraph of Article 69(2) of the Rules of Procedure, which, pursuant to Article 118 of those rules, is applicable to the proceedings on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

595. In accordance with the first subparagraph of Article 69(3) of those rules, however, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs.

596. In the present cases, it is appropriate to take account of the fact that the appellants have failed in the major part of their claims.

597. The pleas whereby they seek annulment of the decision at issue in its entirety must in my view be rejected. To my mind, the appellants did indeed infringe Article 81(1) EC, as the Commission found in Article 1 of that decision. As for the pleas whereby the appellants seek a reduction in the basic amount of the fines set by the Commission in Article 3 of the decision at issue, they have resulted, according to my analysis, in the judgment under appeal being set aside and in the annulment of Article 3 of the decision at issue. None the less, the basic amount of the fine has been amended solely by reference to two assessment criteria.

598. The amount of the fine has been amended for the four appellants on the ground that the cartel had not been shown to have had an actual impact on the market. Furthermore, Erste, RZB and ÖVAG have been granted an additional reduction in their fine on account of the errors made by the Commission when it placed them in categories for the purpose of assessing the gravity of the infringement.

599. In those circumstances, I propose that the Court should order BA-CA to bear its own costs and to pay 80% of the costs incurred by the Commission.

600. As regards Erste, RZB and ÖVAG, I propose that the Court should order them to bear their own costs and to pay 70% of the costs incurred by the Commission.

XII –  Conclusion

601. In light of the foregoing considerations, I therefore propose that the Court should:

(1)      set aside the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Joined Cases T‑259/02 to T-264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission in that it is vitiated:

–        by an error of law, in so far as the Court of First Instance of the European Communities held that the Commission of the European Communities could infer from the mere implementation of the cartel that the infringement had an actual impact on the market, and to do so for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, and also

–        by an error of law and a contradiction in the grounds, in so far as the Court of First Instance of the European Communities held that the Commission of the European Communities could, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, attribute to Erste Bank der österreichischen Sparkassen AG, to Raiffeisen Zentralbank Österreich AG and to Österreichische Volksbanken AG the market shares of the banks in their decentralised sectors, although it did not impute to them the unlawful conduct of those banks;

(2)      dismiss the appeals for the remainder;

(3)      uphold the actions brought before the Court of First Instance of the European Communities for annulment of Commission Decision 2004/138/EC of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty (in Case COMP/36.571/D-1: Austrian banks – ‘Lombard Club’) in so far as:

–        Erste Bank der österreichischen Sparkassen AG, Raiffeisen Zentralbank Österreich AG, Bank Austria Creditanstalt AG and Österreichische Volksbanken AG seek annulment of Article 3 of Decision 2004/138, in so far as the Commission of the European Communities did not demonstrate that the infringement had an actual impact on the market for the purpose of assessing the gravity of the infringement and incorrectly assessed the amount of the relevant fine, and in so far as

–        Erste Bank der österreichischen Sparkassen AG, Raiffeisen Zentralbank Österreich AG and Österreichische Volksbanken AG seek annulment of Article 3 of Decision 2004/138, in so far as the Commission of the European Communities attributed to them, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, the market shares of the banks in their decentralised sectors;

(4)      amend the amount of the fines set in Article 3 of Decision 2004/138 as follows:

–        in Case C‑125/07 P, reduce the amount of the fine imposed on Erste Bank der österreichischen Sparkassen AG to EUR 18 000 000,

–        in Case C‑133/07 P, reduce the amount of the fine imposed on Raiffeisen Zentralbank Österreich AG to EUR 3 037 000,

–        in Case C‑135/07 P, reduce the amount of the fine imposed on Bank Austria Creditanstalt AG to EUR 24 300 000, and

–        in Case C‑137/07 P, reduce the amount of the fine imposed on Österreichische Volksbanken AG to EUR 3 037 000;

(5)      in Cases C‑125/07 P, C‑133/07 P and C‑137/07 P, order Erste Bank der österreichischen Sparkassen AG, Raiffeisen Zentralbank Österreich AG and Österreichische Volksbanken AG to bear their own costs and to pay 70% of the costs incurred by the Commission of the European Communities, and order the Commission of the European Communities to bear 30% of its own costs;

(6)      in Case C‑135/07 P, order Bank Austria Creditanstalt AG to bear its own costs and to pay 80% of the costs incurred by the Commission of the European Communities, and order the Commission of the European Communities to bear 20% of its own costs.

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1 – Original language: French.

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2 – ‘Erste’.

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3 – ‘RZB’.

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4 – ‘BA‑CA’. BA‑CA is an establishment which came into existence as a result of the merger in September 1998 of Bank Austria AG (BA) and Creditanstalt AG (CA). Its name was changed on 13 August 2002.

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5 – ‘ÖVAG’.

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6 – Joined Cases T‑259/02 to T‑264/02 and T‑271/02 [2006] ECR II‑5169 (‘the judgment under appeal’).

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7 – Decision of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty (in Case COMP/36.571/D‑1: Austrian banks – ‘Lombard Club’) (OJ 2004 L 56, p. 1; ‘the decision at issue’).

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8 – Regulation of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), as amended by Council Regulation (EC) No 1216/1999 of 10 June 1999 (OJ 1999 L 148, p. 5) (‘Regulation No 17’). It should be noted that this regulation was replaced by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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9 – Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’).

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10 – OJ 1996 C 207, p. 4; ‘the Leniency Notice’.

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11 – BGBl. 3903/1993.

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12 – As the Court of First Instance stated at paragraph 6 of the judgment under appeal, in Austria a distinction is drawn between single-tier banks and multi-tier bank groupings, which are also described as being ‘decentralised’.

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13 – Case C‑7/95 P John Deere v Commission [1998] ECR I‑3111, paragraph 19 and the case-law cited.

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14 – Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 114 and the case‑law cited.

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15 – See, in particular, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 51 and the case-law cited.

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16 – Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 32 and the case-law cited.

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17 – JCB Service v Commission, paragraph 107 and the case-law cited, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 41 and the case-law cited.

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18 – See, in particular, JCB Service v Commission, paragraph 106 and the case-law cited, and also SGL Carbon v Commission, paragraph 41 and the case-law cited.

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19 – See Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 128; Case C‑359/01 P British Sugar v Commission [2004] ECR I‑4933, paragraph 47; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 244; and also Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 69.

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20 – See, in particular, Baustahlgewebe v Commission, paragraph 129; British Sugar v Commission, paragraph 48; and Dansk Rørindustri and Others v Commission, paragraph 245.

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21 – See PKK and KNK v Council, paragraph 35.

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22 – See, in particular, JCB Service v Commission, paragraph 108 and the case-law cited, and also PKK and KNK v Council, paragraph 37 and the case-law cited.

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23 – I refer, in that regard, to the reasoning set out at paragraph 53 et seq. of Aalborg Portland and Others v Commission.

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24 – See, in that regard, Decision No 2000-D-28 of the French Conseil de la concurrence (Competition Council) of 19 September 2000 on competition in the property loans sector (BOCCRF No 13 of 5 December 2000) and the judgment of the Cour d’appel de Paris (Court of Appeal, Paris) of 27 November 2001 on the appeal by SA Caisse nationale du crédit agricole, SA Société générale, SA BNP Paribas, SA Crédit lyonnais, Confédération nationale du crédit mutuel, Fédération du crédit mutuel océan, Caisse régionale du Crédit agricole de la Loire‑Atlantique, SA Caisse nationale des caisses d’épargne et de prévoyance (CNCEP) and Caisse d’épargne des Alpes against Decision No 2000-D-28 of the Conseil de la concurrence of 19 September 2000 on competition in the property loans sector (BOCCRF No 2 of 31 January 2002).

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25 – See, to that effect, Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 9.

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26 – Case C‑176/99 P ARBED v Commission [2003] ECR I‑10687, paragraph 21.

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27 – See Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 27.

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28 – Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 15.

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29 – See, to that effect, Case C‑7/98 Krombach [2000] ECR I‑1935, paragraphs 25 and 26, and also Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraphs 37 and 38.

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30 – See Orkem v Commission, paragraph 35.

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31 – See Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 10, and also Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865, paragraph 21.

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32 – See Musique diffusion française and Others v Commission, paragraph 14.

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33 – See, to that effect, Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds v Commission [1987] ECR 4487, paragraph 70.

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34 – See Musique diffusion française and Others v Commission, paragraph 14.

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35 – As regards that second condition, in order for an agreement or a concerted practice to be contrary to Article 81(1) EC, it must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the common market’. It is therefore necessary to ascertain, in the first place, whether the agreement or concerted practice has an anti-competitive object. If it has, as in the present case, the prohibition in Article 81(1) EC applies, independently of any effect (recitals 426 to 429 to the decision at issue). If the object is not to restrict or distort competition, it is then necessary to undertake an analysis in order to establish whether or not such an effect is produced (see, in particular, Case C‑234/89 Delimitis [1991] ECR I‑935, paragraph 13, and also Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 152).

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36 – Case C‑238/05 Asnef‑Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 33 and also the case-law cited.

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37 – Case C‑306/96 Javico [1998] ECR I‑1983, paragraph 16, and also Asnef‑Equifax and Administración del Estado, paragraph 34. See also Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 170, and Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 20.

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38 – Ibid.

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39 – Asnef‑Equifax and Administración del Estado, paragraph 35 and the case-law cited.

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40 – Case 19/77 Miller International Schallplatten v Commission [1978] ECR 131, paragraph 15, and Ferriere Nord v Commission, paragraph 19. See also Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 48.

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41 – See Case 5/69 Völk [1969] ECR 295, paragraph 5, and also Miller International Schallplatten v Commission, paragraph 15, and Asnef‑Equifax and Administración del Estado, paragraph 34 and the case-law cited.

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42 – Javico, paragraph 17 and the case-law cited.

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43 – Emphasis added.

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44 – Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 25, and also Asnef‑Equifax and Administración del Estado, paragraph 37 and the case-law cited.

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45 – Groupement des fabricants de papiers peints de Belgique and Others v Commission, paragraph 26; Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22; Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 48; Case C‑309/99 Wouters and Others [2002] ECR I‑1577, paragraph 95; and also Asnef‑Equifax and Administración del Estado, paragraph 37 and the case-law cited.

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46 – Paragraph 6.

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47 – See paragraph 160 of the judgment under appeal.

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48 – See, in particular, the illustrations at recital 431 to the decision at issue.

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49 – It should be borne in mind, in that regard, that Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1), as amended by European Parliament and Council Directive 95/26/EC of 29 June 1995 (OJ 1995 L 168, p. 7), made it easier for European banks to have access to the banking markets of Member States other than their State of origin by harmonising the conditions for the exercise of banking activities, by establishing a principle of mutual recognition of the authorisations to conduct banking operations that are issued by Member States to credit institutions and by providing that those credit institutions are to be supervised solely by their Member State of origin.

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50 – Under Article 43 EC, credit institutions enjoy freedom of establishment on the same basis as all economic operators.

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51 – The banking sector also enjoys, under Article 49 EC, freedom to provide services and is entitled to provide such services to persons established in other Member States without any discrimination. It should further be borne in mind that, in the words of Article 51(2) EC, the liberalisation of banking and insurances services connected with movements of capital is to be effected in step with the liberalisation of movement of capital.

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52 – See, in that regard, Baustahlgewebe v Commission, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86. See also Article 2 of Regulation No 1/2003, which states that in any national or Community proceedings for the application of Article 81 EC, the burden of proving an infringement of Article 81(1) EC is to rest on the party or the authority alleging the infringement.

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53 – Case T‑77/94 [1997] ECR II‑759.

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54 – Case T‑29/92 [1995] ECR II‑289.

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55 – Case C‑250/92 DLG [1994] ECR I‑5641, paragraph 54, and also van Landewyck and Others v Commission, paragraph 170; Remia and Others v Commission, paragraph 22; Ferriere Nord v Commission, paragraph 20; Javico, paragraph 16; Bagnasco and Others, paragraph 47; and British Sugar v Commission, paragraph 27.

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56 – See, in particular, Case 22/71 Béguelin Import [1971] ECR 949, paragraph 18, and Javico, paragraph 17.

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57 – VGB and Others v Commission, paragraph 140.

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58 – Case 193/83 [1986] ECR 611.

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59 – Paragraph 96.

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60 – Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 833; Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 230; and also Case T‑61/99 Adriatica di Navigazione v Commission [2003] ECR II‑5349, paragraph 27.

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61 – OJ 1990 L 257, p. 13.

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62 – Joined Cases T‑68/89, T‑77/89 and T‑78/89 SIV and Others v Commission [1992] ECR II‑1403, paragraph 159.

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63 – Commission notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the Notice on market definition’).

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64 – Paragraphs 10 and 25 of the Notice on market definition.

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65 – SPO and Others v Commission.

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66 – It will be recalled that an anti-competitive practice may also, by its object alone, be caught by Article 81(1) EC. For an illustration, see Cimenteries CBR and Others v Commission, paragraph 1094, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 99.

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67 – This case-law seems to me to be debatable from the point of view of the rights and legal certainty of undertakings. When the Commission adopts a decision in which it finds that undertakings have participated in a complex, collective and uninterrupted infringement, such as the decision adopted in the present cases, it must, to my mind, take into consideration the fact that that decision is liable to entail the personal liability of each person to whom it is addressed, taking account of their participation in the infringement, which must be clearly delimited. As the decision is apt to entail consequences on the civil level, the Commission ought in my view to examine and define the relevant market precisely in the decision.

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68 – Order of 16 February 2006 in Case C‑111/04 P Adriatica di Navigazione v Commission, paragraph 31.

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69 – See, in particular, Commission Regulation (EC) No 2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements (OJ 2000 L 304, p. 7).

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70 – Commission notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) (OJ 2001 C 368, p. 13).

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71 – See, in particular, Cimenteries CBR and Others v Commission, paragraph 834 and the case-law cited.

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72 – The Commission also acknowledges, at paragraph 22 of the Notice on market definition, that in certain sectors, such as the paper sector, in which consumers consider that differences in quality are not substitutable, it does not define a separate market for each quality of paper and its respective use. In such a case, the various qualities of paper are included in the same market and their sales are added up to estimate the total market value.

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73 – Asnef‑Equifax and Administración del Estado, paragraph 43 and the case-law cited.

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74 – Emphasis added.

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75 – Paragraph 15 of that judgment.

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76 – See point 96 of this Opinion.

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77 – See Asnef‑Equifax and Administración del Estado, paragraph 35 and the case-law cited.

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78 – See Ferriere Nord v Commission, paragraph 19, and also Bagnasco and Others, paragraph 48.

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79 – Emphasis added. See, in particular, Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 38 and the case-law cited.

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80 – See, in particular, Commission v Anic Partecipazioni, paragraph 78.

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81 – See Case C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 71; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 37; Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 25; and also ETI and Others, paragraph 39 and the case-law cited.

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82 – See, in particular, SCA Holding v Commission, paragraph 25.

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83 – See, in particular, Commission v Anic Partecipazioni, paragraph 145.

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84 – In such a situation, the Court considers that this would jeopardise the objective of suppressing conduct that infringes the competition rules and preventing its recurrence by means of deterrent penalties (see ETI and Others, paragraph 41 and the case-law cited).

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85 – Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 953.

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86 – See, in particular, Case C‑294/98 P Metsä‑Serla and Others v Commission [2000] ECR I‑10065, paragraph 27, and Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 96.

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87 – As the Court of First Instance stated at paragraph 7 of the judgment under appeal, most of the shares in GiroCredit were held by the Bank Austria group.

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88 – The Court of First Instance clearly explained that case-law at paragraphs 323 to 326 and 330 to 333 of the judgment under appeal.

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89 – The practices in question were caught by Article 81(1) EC from 1 January 1995. Erste bought GiroCredit in May 1997. The two entities merged in October 1997.

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90 – This method is explained at points 9 to 13 of this Opinion.

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91 – See, by analogy, Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 46 and the case-law cited.

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92 – In that regard, it should be borne in mind that the Court has consistently held that the gravity of infringements must be established by reference to numerous factors and that no binding or exhaustive list of the criteria which must be applied has been drawn up (Ferriere Nord v Commission, paragraph 33, and also Dansk Rørindustri and Others v Commission, paragraphs 240 and 241).

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93 – See Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 176, and Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 612; and also Ferriere Nord v Commission, paragraph 38; Aalborg Portland and Others v Commission, paragraphs 90 and 91 and the case-law cited; and Dansk Rørindustri and Others v Commission, paragraphs 241 and 242 and the case-law cited.

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94 – At paragraphs 209 to 213 of the judgment in Dansk Rørindustri and Others v Commission, the Court observed that the Guidelines ensure legal certainty for the undertakings concerned and enable them to know what methods will be used by the Commission to calculate the fines imposed in application of Article 15(2) of Regulation No 17.

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95 – See, in particular, Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118; Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others v Commission [2001] ECR II‑2035, paragraph 103; and Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 262.

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96 – Case T‑203/01 [2003] ECR II‑4071.

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97 – Paragraphs 258 and 259.

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98 – Thyssen Stahl v Commission, paragraph 118.

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99 – See also Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 447. That judgment is the subject of appeals currently pending before the Court (Case C‑322/07 P, Case C‑327/07 P and Case C‑338/07 P). However, those appeals do not concern that paragraph.

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100 – Paragraphs 53 and 62.

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101 – See Suiker Unie and Others v Commission, paragraphs 619 and 620, and Case T‑73/04 Carbone‑Lorraine v Commission [2008] ECR II-0000, paragraph 83 and the case-law cited.

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102 – Thyssen Stahl v Commission, paragraph 118.

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103 – See also Bolloré and Others v Commission, (paragraph 447, and the judgment under appeal, paragraph 240.

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104 – Case T‑322/01 Roquette Frères v Commission [2006] ECR II‑3137, paragraphs 71 to 80, in particular paragraph 75, and paragraphs 133 to 144; Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 151 to 163, in particular paragraph 155; Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627 (‘Archer Daniels Midland II’), paragraphs 157 to 168, in particular paragraph 161; Case T‑52/03 Knauf Gips v Commission [2008] ECR II‑0000, paragraphs 388 to 415, in particular paragraph 392; Case T‑53/03 BPB v Commission [2008] ECR II‑0000, paragraphs 297 to 322, in particular paragraph 301; and Case T‑54/03 Lafarge v Commission [2008] ECR II‑0000, paragraphs 575 to 604, in particular paragraph 583.

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105 – Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 231.

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106 – Ibid.

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107 – In the appeal against that judgment, the Court was not requested to deal with that paragraph.

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108 – Joined Cases T‑49/02 to T‑51/02 [2005] ECR II‑3033.

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109 – Groupe Danone v Commission, paragraph 150, and Brasserie nationaleand Others v Commission, (paragraphs 178 and 179, and also the judgment under appeal, paragraph 240.

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110 – Judgment under appeal, paragraph 285.

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111 – Ibid., paragraph 286 and the case-law cited.

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112 – Ibid., paragraph 287 and the case-law cited.

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113 – Case T‑410/03 [2008] ECR II‑0000, paragraphs 345 and 348.

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114 – Paragraphs 84 to 87.

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115 – Judgment of 12 September 2007 in Case T‑30/05. That judgment is currently under appeal before the Court of Justice (Case C‑534/07 P).

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116 – Paragraph 110.

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117 – Case T‑329/01 [2006] ECR II‑3255 (‘Archer Daniels Midland I’).

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118 – Paragraphs 77 and 180 respectively.

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119 – Paragraphs 78 and 181 respectively.

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120 – Paragraphs 76 to 78 and 179 to 181 respectively.

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121 – Paragraphs 156 to 159 and 162 to 166 respectively.

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122 – Paragraphs 393 and 394, 302 and 303 and 585 and 586 respectively.

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123 – Roquette Frères v Commission, paragraph 79, and Archer Daniels Midland I, paragraph 182.

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124 – Degussa v Commission, paragraph 232.

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125 – Jungbunzlauer v Commission, paragraph 159, and also Archer Daniels Midland II, paragraphs 165 and 166. See also Knauf Gips v Commission, paragraphs 395 and 403; BPB v Commission, paragraphs 304 and 312; and Lafarge v Commission, paragraphs 587 and 594.

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126 – Jungbunzlauer v Commission, paragraphs 177 to 190, in particular paragraph 179, and Archer Daniels Midland II, paragraphs 180 to 192, in particular paragraph 182. See also the approach taken by the Court of First Instance in Degussa v Commission, paragraph 224.

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127 – Paragraph 185 and the case-law cited.

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128 – Lafarge v Commission, paragraphs 587 to 593. See also Knauf Gips v Commission, paragraphs 396 to 402, and BPB v Commission, paragraphs 307 to 311.

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129 – Paragraph 240 and the case-law cited.

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130 – See footnote 118.

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131 – See paragraph 286 of the judgment under appeal.

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132 – JCB Service v Commission, paragraph 205. See also Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 87 and the case-law cited.

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133 – See JCB Service v Commission, paragraph 201.

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134 – It should be borne in mind that, in accordance with consistent case-law, the question whether the Court of First Instance responded to the parties’ pleas and properly stated the grounds of its judgment is a point of law which may as such be invoked in an appeal (see, in particular, Case C‑401/96 P Somaco v Commission [1998] ECR I‑2587, paragraph 53 and the case-law cited).

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135 – See, to that effect, Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 to 34, and Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70, and the orders of the President of the Court of 19 July 1995 in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 58, of 14 October 1996 in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 52, and of 25 June 1998 in Case C‑159/98 P(R) Antilles néerlandaises v Council [1998] ECR I‑4147, paragraph 70.

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136 – See the case-law cited at footnote 19 to this Opinion.

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137 – Case C‑274/99 P [2001] ECR I‑1611.

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138 – Paragraph 120.

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139 – Paragraph 121. See also Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81.

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140 – Recital 470 to the decision at issue.

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141 – Points 245 to 251 of this Opinion.

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142 – The market shares in question were attributed to GiroCredit for the period 1995 to October 1997, when GiroCredit was the central institution in the sector, and to Erste for the period October 1997 to June 1998, when, after taking over GiroCredit, Erste became the lead institution in the sector.

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143 – Emphasis added.

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144 – Paragraphs 261 and 504 to 506 of the judgment under appeal.

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145 – The appellant refers to Commission Decision 77/327/EEC relating to a proceeding under Article 86 of the EEC Treaty (IV/28.841 – ABG/Oil companies operating in the Netherlands) (OJ 1977 L 117, p. 1); Commission Decision 92/204/EEC of 5 February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.572 and 32.571 – Building and construction industry of the Netherlands) (OJ 1992 L 92, p. 1) (see recital 141 to the decision); and Commission Decision 1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.466 – Greek Ferries) (OJ 1999 L 109, p. 24); and also to Jungbunzlauer v Commission, paragraph 88.

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146 – Case C‑198/01 [2003] ECR I‑8055, paragraph 57.

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147 – See, inter alia, Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 309, and Archer Daniels Midland I, paragraph 107.

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148 – See, to that effect, Jungbunzlauer v Commission, paragraph 238.

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149 – Paragraph 205. See also Scandinavian Airlines System v Commission, paragraph 87 and the case-law cited.

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150 – JCB Service v Commission, paragraph 201.

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151 – Paragraph 506 of the judgment under appeal.

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152 – Recitals 558 and 559 to the decision at issue.

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153 – Recitals 545 and 546 to the decision at issue.

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154 – Recitals 547 to 557 to the decision at issue.

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155 – Paragraph 456.

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156 – Paragraphs 393 and 394.

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157 – In its appeal, BA‑CA refers to the concept of ‘invaluable’ (‘hilfreiche’) cooperation by the undertaking. That word does not appear in the judgment under appeal.

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158 – See Groupe Danone v Commission, paragraph 453.

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159 – See, to that effect, Jungbunzlauer v Commission, paragraph 238.

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160 – Paragraph 454.

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161 – Paragraph 32 et seq.

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162 – Paragraph 34.

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163 – Ibid.

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164 – Paragraph 27.

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165 – See Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 7; Hoechst v Commission, paragraph 15; and also Orkem v Commission, paragraphs 32 and 33.

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166 – Paragraph 33.

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167 – Emphasis added.

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168 – See also Aalborg Portland and Others v Commission, paragraphs 61 to 65.

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169 – Orkem v Commission, paragraph 37.

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170 – See the case-law cited at paragraph 540 of the judgment under appeal and, in particular, Case T‑112/98 Mannesmannröhren‑Werke v Commission [2001] ECR II‑729, paragraphs 71 to 73 and also the case-law cited.

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171 – Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17).

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172 – Paragraph 276.

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173 – See, in that regard, my reasoning at point 128 of this Opinion.

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174 – See, in particular, the order of 12 December 2006 in Case C‑129/06 P Autosalone Ispra v Commission, paragraph 22 and the case-law cited.

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175 – Apart from the appellants, the following had also brought actions: Bank für Arbeit und Wirtschaft AG (‘BAWAG’), PSK, Niederösterreichische Landesbank‑Hypothekenbank AG (‘NÖ‑Hypo’) and Raiffeisenlandesbank Niederösterreich‑Wien AG (‘RLB’). RLB took over Raiffeisen Wien AG (‘RBW’) in 1997.

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176 – Recital 426 to the decision at issue.

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177 – First and fourth paragraphs of Section 1A of the Guidelines.

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178 – The guide value of the second to fourth categories corresponds in each case to one half of that of the category above, and the same applies to the corresponding starting amount (see paragraph 424 of the judgment under appeal).

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179 – I refer to the section headed ‘Arguments of the parties’ at paragraphs 339 to 354 of the judgment under appeal.

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180 –      Emphasis added.

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181 – Recital 9(c) to the decision at issue, cited in the preceding point of this Opinion.

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182 – See recitals 58 to 62, 358 to 361 and 516 to 518 to the decision at issue.

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183 – See Commission decisions of 7 November 2000, COMP/M.2140, BAWAG/PSK (recital 9); of 14 November 2000, COMP/M.2125, HypoVereinsbank/Bank Austria (recital 21); and of 2 July 2001, COMP/M.2402, Creditanstalt/RZB/JV (recital 15). All those decisions are published on the website http://ec.europa.eu/comm/competition/mergers/cases.

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184 – That decision is also available on the website http://ec.europa.eu/comm/competition/mergers/cases.

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185 – The amount of the fines is expressed in million EUR.

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186 – Recitals 521 and 522 to the decision at issue.

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187 – Recitals 525 to 542 to the decision at issue.

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188 – Recitals 543 to 559 to the decision at issue.