Keywords
Summary

Keywords

1 Competition - Community rules - Infringements - Attribution - Where a branch of activities is transferred to a third person - Legal person responsible for the undertaking's operation when the infringement was committed

(EC Treaty, Art. 85(1))

2 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules - Decision concerning several addressees - Identification of the body liable for the alleged infringement

(EC Treaty, Art. 190)

3 Competition - Agreements, decisions and concerted practices - Prohibition - Cartels continuing to produce their effects after their formal termination - Application of Article 85 of the Treaty

(EC Treaty, Art. 85)

4 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Setting up of an effective programme for compliance with the Community competition rules

(Council Regulation No 17, Art. 15)

5 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct at odds with that agreed by the cartel - Assessment

(Council Regulation No 17, Art. 15)

6 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure - Illegality of reductions given to undertakings which have not expressly acknowledged the Commission's factual allegations - Undertakings precluded from relying on the principle of equal treatment in order to obtain unlawful reductions

(Council Regulation No 17, Art. 15)

7 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15(2))

8 Competition - Fines - Amount - Determination thereof - Criteria - Total turnover of the undertaking concerned - Turnover accounted for by goods in respect of which the infringement was committed - Taken into account - Limits - Percentage rate of the fine applied to the same reference turnover for all undertakings implicated in the same infringement

(Council Regulation No 17, Art. 15(2))

9 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

Summary

1 Where an undertaking is found to have infringed the Community competition rules, the infringement must be attributed to the legal person responsible for the operation of that undertaking when the infringement was committed. While that legal person 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 transferred to third persons after the period of the infringement.

2 The statement of the reasons on which a decision having an adverse effect on an individual is based must enable effective review of its legal validity to be carried out and must provide the person concerned with information sufficient to allow him to ascertain whether or not the decision is well founded. The adequacy of such a statement of reasons must be assessed according to the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which addressees may have in receiving explanations. In order to fulfil those purposes, an adequate statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question.

Where a decision taken in application of Articles 85 or 86 of the Treaty relates to several addressees and raises a problem of attribution of liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for that infringement. Where, therefore, in the course of the administrative procedure before the Commission, an undertaking has put forward several grounds on which it considers that the alleged infringement cannot be attributed to it, if the decision is to contain an adequate statement of reasons in regard to that undertaking, it must contain a detailed statement of reasons for attributing the infringement to it.

3 The system of competition rules established by Article 85 et seq. of the Treaty is concerned with the economic effects of agreements or of any comparable form of concerted practice or coordination rather than with their legal form. Consequently, with regard to cartels which are no longer in force, it is sufficient, for Article 85 to be applicable, that they continue to produce their effects after they have formally ceased to be in force.

4 When the Commission determines the fine to be imposed for infringement of the Community competition rules, the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. One of the mitigating factors which may be taken into account is the setting up of a programme for compliance with the Community competition rules. However, if such a programme proves ineffective, the Commission need not take it into consideration as a mitigating factor.

5 The fact that an undertaking which has been proved to have participated in collusion on prices with its competitors has not behaved on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit.

6 When the amount of the fine to be imposed for infringement of the Community competition rules is determined, a reduction on grounds of cooperation during the administrative procedure is justified only if the conduct made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it.

In those circumstances, an undertaking which expressly states that it is not contesting the factual allegations on which the Commission bases its objections may be regarded as having facilitated the Commission's task of finding and bringing to an end infringements of the Community competition rules. In its decisions finding infringements of those rules, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the factual allegations and thus proves that those allegations are correct. Such conduct may therefore justify a reduction in the fine.

The situation is different where the essential allegations made by the Commission in its statement of objections are contested by an undertaking in its reply to that statement, or where the undertaking does not reply or merely states that it is not expressing any view on the Commission's factual allegations. By adopting such an attitude during the administrative procedure the undertaking does not facilitate the Commission's task.

Since reductions in fines can be considered lawful only in so far as the undertakings concerned have expressly stated that they do not contest the factual allegations, an undertaking which has not adopted that attitude cannot lay claim to a reduction by virtue of its cooperation during the administrative procedure because, even assuming that the Commission has applied an unlawful criterion by reducing the fines imposed on undertakings which had not expressly stated that they were not contesting the factual allegations, it is necessary that respect for the principle of equal treatment be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party.

7 Fines for infringement of the Community competition rules are fixed by reference to the gravity and duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, the Commission is entitled, when assessing the gravity of the infringement, to take into account measures adopted by the undertakings concerned to conceal the existence of the collusion.

Lastly, when fixing the general level of fines, the Commission is entitled to take into account the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

8 When the amount of the fines to be imposed for infringement of the Community competition rules is determined, the criteria for assessing the gravity of the infringement may include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance which is disproportionate in relation to the other factors and that the fixing of fines cannot be the result of a simple calculation based on total turnover.

Since the turnover of the undertakings implicated in the same infringement must be taken as a basis for determining the relationship between the fines to be imposed, the Commission is entitled to calculate the fines for each of those undertakings by applying the relevant percentage rate of the fine to an identical reference turnover for the undertakings concerned, so that the figures obtained will be as comparable as possible.

9 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

As regards decisions imposing fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered to be obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.