Keywords
Summary

Keywords

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Contact incompatible with the obligation for each undertaking to determine independently its conduct on the market – Exchange of information – Presumption – Conditions

(Art. 81(1) EC)

3. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence

(Art. 81(1) EC)

4. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Documentary proof

(Art. 81(1) EC)

5. Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Applicability

(Art. 81(1) EC)

6. Competition – Administrative procedure – Commission decision finding an infringement – Use of statements submitted in the context of the Leniency Notice by other undertakings which have participated in the infringement, as a means of proof – Whether permissible – Conditions

(Arts 81 EC and 82 EC)

7. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission – Limits

(Art. 81(1) EC)

8. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient finding

(Art. 81(1) EC)

9. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Probative value of evidence provided voluntarily against an undertaking by the main participants in an unlawful agreement in order to benefit from the application of the Leniency Notice

(Art. 81(1) EC; Commission Notice 96/C 207/04)

10. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible

(Art. 81(1) EC)

11. Competition – Administrative procedure – Commission decision finding an infringement in respect of an undertaking, adopted after another Commission decision referring to that undertaking only in the context of the statement of the facts but not as an addressee and not penalising it – Breach of the ne bis in idem principle – None

(Art. 81(1) EC)

12. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof

(Art. 81(1) EC)

13. Competition – Agreements, decisions and concerted practices – Proof – Undertaking’s response to the request for information from the Commission – Probative value – Assessment

(Council Regulations No 17, Art. 11, and No 1/2003, Art. 18)

14. Competition – Administrative procedure – Commission decision finding an infringement – Duty of the Commission to examine carefully and impartially all the relevant aspects of the individual case

15. Competition – Administrative procedure – Commission’s premature display of its belief as to the existence of an infringement

16. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences – Need to draw a distinction with regard to the burden of proof on the undertaking concerned between incriminating documents and exculpatory documents

(Council Regulation No 1/2003, Art. 27(2))

17. Competition – Administrative procedure – Access to the file – Documents not contained in the investigation file and not retained by the Commission to be used as evidence – Documents capable of assisting the defence of the parties

(Arts 81(1) EC and 82 EC; EEA Agreement, Arts 53, 54 and 57; Council Regulation No 139/2004; Commission Notice 2005/C 325/07, Section 27)

18. Competition – Fines – Amount – Determination – Commission’s margin of discretion – Limits – Compliance with the Guidelines adopted by the Commission – Judicial review

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Actual impact on the market taken into account – Scope

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Discretion of the Commission

(Council Regulations Nos 17 and 1/2003; Commission Notice 98/C 9/03)

21. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Conditions

(Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

22. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Turnover taken into consideration

(Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

23. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Criteria for assessment – Infringement – Consequences

(Council Regulation No 1/2003)

24. Competition – Fines – Amount – Determination – Possibility to raise the level of fines in order to increase their deterrent effect

(Art. 81 EC)

25. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Infringement – Consequences – Equitable reduction in the amount of the fine

(Art. 81 EC)

Summary

1. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation. The existence of an agreement within the meaning of Article 81 EC is not called into question either by the likelihood that the consensus between the undertakings did not extend to the practical arrangements for implementing the price increase or the fact that that increase never actually took place on the market.

(see paras 34-35, 175)

2. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition.

Subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors for the purposes of determining their conduct on that market. That will be all the more true where the undertakings concert together on a regular basis over a long period.

(see paras 36-37, 178)

3. As regards establishing an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement. Thus, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement.

However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

As anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

(see paras 38-41)

4. Where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient.

(see para. 42)

5. As regards the scope of review by the Court, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met.

Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of European Union (‘EU’) law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 43-44)

6. No provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty.

Admittedly, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence. Such a statement cannot therefore be sufficient, in itself, to establish the existence of the infringement, but must be corroborated by other evidence. Nevertheless, the degree of corroboration required is lesser, in terms both of precision and of depth, than would be the case if that statement were not particularly credible.

Thus, it must be concluded that, if a body of consistent evidence corroborated the existence and certain specific aspects of the practices mentioned in that statement, that statement might be sufficient in itself, in such a case, to constitute evidence of other aspects of the Commission’s decision.

Moreover, provided that a document does not manifestly contradict the statement as to the existence or the essential content of the contested practices, the fact that it provides evidence of significant elements of the practices which it described is sufficient to endow it with corroborative value within the body of inculpatory evidence.

(see paras 60, 79-81)

7. The Commission often has to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated with the Commission.

Whilst it is necessarily incumbent upon the Commission to establish that an illegal market-sharing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission.

(see para. 69)

8. It follows from the text of Article 81 EC that agreements and concerted practices between undertakings are prohibited, regardless of their effect on the market, when they have an anti-competitive object. Thus, because the Commission has established the existence of agreements and concerted practices which have an anti-competitive object, this finding cannot be refuted by information relating to the non-application of cartel arrangements or the absence of any effect on the market.

(see paras 70-71)

9. Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, considering the possibility that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

(see para. 78)

10. Given such a complex factual situation, the dual characterisation of anticompetitive conduct as a ‘complex of agreements and/or concerted practices’, in so far as that conduct involved at one and the same time elements to be characterised as ‘agreements’ and elements to be characterised as ‘concerted practices’, must be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81 EC, which lays down no specific category for a complex infringement of this type.

(see para. 183)

11. The ne bis in idem principle, which constitutes a general principle of EU law, whose observance the Courts ensure, prohibits the same person from being penalised more than once for the same unlawful conduct in order to protect one and the same legal interest. The application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender and the unity of the legal interest protected.

When the Commission penalises an undertaking for anticompetitive conduct, that principle is in no way breached by the fact that the conduct referred to has already been the subject of an earlier decision of the Commission, since the undertaking was not penalised by that earlier decision, nor was it among the addressees of that decision nor the addressees of the statement of objections adopted in the procedure leading to the adoption of that decision, and that its participation in the unlawful conduct was only referred to in the context of the statement of fact, without being the subject of any legal assessment whatsoever by the Commission.

(see paras 186-188)

12. The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this regard, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

(see para. 198)

13. The probative value of a statement given on behalf of the undertaking in reply to the request for information from the Commission under Article 11 of Regulation No 17 and Article 18 of Regulation No 1/2003 carries more weight than that of an employee of the undertaking, whatever his individual experience or opinion.

(see para. 217)

14. The rights guaranteed by the EU legal order in administrative procedures include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

(see para. 222)

15. The existence of an infringement must be assessed having regard only to the evidence gathered by the Commission. Where the substance of an infringement is actually established following the administrative procedure, evidence of a premature manifestation by the Commission, during that procedure, of its conviction that the infringement exists is not of such a kind as to deprive the actual evidence of the infringement itself of its reality.

(see para. 226)

16. The right of access to the file is a corollary of the principle of respect for the rights of the defence and means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence.

By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, by showing, in particular, that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision.

(see paras 236-239)

17. The statement of objections is a document whose aim is to delimit the scope of the procedure initiated against an undertaking and to ensure that the rights of the defence may be exercised effectively. It is from that aspect that the statement of objections is subject to procedural safeguards, pursuant to the principle of respect for the rights of the defence, one of which is the right of access to documents in the Commission’s file.

The replies to the statement of objections are not part of the investigation file proper. Since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other parties involved only if it transpires that they contain new incriminating or exculpatory evidence. Similarly, under paragraph 27 of the Commission notice on the rules for access to the Commission file in cases pursuant to Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Regulation No 139/2004, as a general rule, the parties do not have access to the replies to the statement of objections of the other parties involved in the investigation. A party is granted access to such documents only where they may constitute new evidence, whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the Commission’s statement of objections.

In this respect, concerning, first, new incriminating evidence, it is settled case-law that, if the Commission wishes to rely on evidence from a reply to a statement of objections in order to prove the existence of an infringement, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such new evidence.

As regards new exculpatory evidence, the Commission is not obliged to make it available of its own initiative. If, during the administrative procedure, the Commission has rejected an applicant’s request for access to documents which are not in the investigation file, an infringement of the rights of the defence may be found only if it is proved that the outcome of the administrative procedure might have been different if the applicant had had access to the documents in question during that procedure.

(see paras 241-246, 249)

18. The Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the 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, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation No 1/2003.

In addition, in areas such as determining the amount of a fine under Regulation No 1/2003, where the Commission has such a discretion, review of the legality of its assessments is limited to determining the absence of manifest error of assessment. The discretion enjoyed by the Commission and the limits which it has imposed in that regard have no bearing, however, on the exercise by the EU judicature of its unlimited jurisdiction, which empowers it to annul, reduce or increase the fine imposed by the Commission.

(see paras 265-267)

19. The gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion.

In particular, according to the first paragraph of Section 1.A of the 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, 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. In the exercise of its unlimited jurisdiction, the Court must nevertheless consider whether the amount of the fine imposed is proportionate to the gravity of the infringement and must weigh the seriousness of the infringement with the circumstances invoked by the undertaking.

Within the meaning of the third indent of the second paragraph of Section 1.A of those guidelines, very serious infringements are ‘generally horizontal restrictions such as price cartels and market‑sharing quotas’. Agreements of this kind constitute one of the most serious forms of damage to competition, in that their aim is quite simply to eliminate competition between the undertakings which implement them, and therefore run counter to the fundamental objectives of the EU. Horizontal price or market sharing agreements may be classified as very serious infringements solely on account of their nature, without the Commission being required to demonstrate an actual impact of the infringement on the market.

Whilst the existence of an actual impact of the infringement on the market is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1.A of those guidelines that that impact is to be taken into account only where this can be measured.

(see paras 270-272, 275-276, 280-281)

20. Within the framework of Regulation No 17 and of Regulation No 1/2003, the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules and that it may at any time adjust the level of fines to the needs of that policy.

The Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters.

The decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same.

The Commission assesses the gravity of infringements by reference to numerous factors, which are not based on a binding or exhaustive list of the criteria which must be applied and it is not, moreover, bound to apply a precise mathematical formula, either for the total amount of the fine or where it is broken down into different elements. In these circumstances, a direct comparison of the fines imposed on the addressees of the two decisions concerning distinct infringements is likely to distort the specific functions performed by the different stages in the calculation of a fine. The final amounts of the fines reflect the specific circumstances of each cartel.

(see paras 288, 290, 293-294)

21. Under the 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, where there are infringements involving a number of undertakings, the Commission may weight the starting amounts to take account of the specific weight of each undertaking by dividing the members of the cartel into groups particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. These guidelines further state that the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without that differentiation being governed by any arithmetic calculation.

In determining the gravity of the infringement, the Commission is not required to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover. However, it may divide them into groups.

A division of the undertakings concerned by categories must, however, comply with the principle of equal treatment, according to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified. Moreover, the amount of the fines must, at least, be proportionate in relation to the factors that entered into the assessment of the seriousness of the infringement.

(see paras 298-300)

22. Despite its approximate nature, turnover is regarded as an adequate criterion, in competition law, for assessing the size and the economic power of the undertakings concerned.

With regard to the use of turnover including excise duties for the calculation of the individual basic amounts, it should be emphasised that, in so far as that calculation involved the relative weighting of the other participants in the cartel on that market, the non-inclusion of taxes or excise duties do not alter the Commission’s final conclusion. Only if the Commission had calculated the individual basic amounts of the other parties involved on the basis of turnover not including excise duties could there be a breach of the principle of equal treatment.

(see paras 304, 306)

23. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the EU judicature ensures.

For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder of the administrative procedure. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned.

The length of the first phase of the procedure of 65 months must be regarded, in the absence of further explanation or information from the Commission regarding the measures of inquiry undertaken during that period, as excessive. However, a finding that there has been a breach of the reasonable time principle may result in the annulment of a decision establishing an infringement only where the length of the proceedings affected their outcome.

(see paras 316-318, 320, 322, 325)

24. The fact that the Commission has, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of competition policy. On the contrary, the proper application of the competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

(see para. 335)

25. A procedural irregularity, even though it is not capable of resulting in the annulment of a decision adopted by the Commission in respect of an undertaking for an infringement of the competition rules, may justify a reduction of the fine. Failure to adjudicate within a reasonable time can justify the Commission’s decision to reduce, in equity, the amount of a fine, since the possibility of granting such a reduction falls within the scope of the Commission’s powers.

(see paras 337-338)