Case T‑540/08

Esso Société anonyme française and Others

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Paraffin waxes market — Slack wax market — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — 2006 Guidelines on the method of setting fines — Duration of the infringement — Equal treatment — Proportionality — Unlimited jurisdiction’

Summary — Judgment of the General Court (Third Chamber), 11 July 2014

1. Agreements, decisions and concerted practices — Participation of undertaking in anti-competitive initiatives — Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities — Burden of proof on the undertaking

   (Art. 81(1) EC)

2. Judicial proceedings — Measures of organisation of procedure — Written questions put to the parties — No automatic effect on the outcome of the dispute — Freedom of the General Court in its absolute discretion to assess the facts and evidence

   (Rules of Procedure of the General Court, Arts 49 and 64)

3. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement — Exceptional character thereof in relation to certain participants — Account taken of a broader period in the same way for all participants — Undertaking in a different position from that of other undertakings participating in the cartel — Breach of the principle of equal treatment

   (Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 6 and 13)

4. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Reference period for calculating the value of sales — Merger occurring during the cartel — Value of sales during the reference period not representative — Breach of principle of proportionality

   (Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02)

5. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope

   (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)

1.  See the text of the decision.

   (see paras 38-46, 54)

2.  See the text of the decision.

   (see paras 56-62)

3.  See the text of the decision.

   (see paras 93-103)

4.  In competition matters, the basic amount of the fine calculated in accordance with the guidelines for calculating fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2203, on the basis of the value of sales during the reference period, multiplied by the duration coefficient, gives an appropriate replacement value, reflecting the economic reality for the entire duration of the infringement, only if the component which constitutes its starting point — the value of sales — is at least approximately representative of the entire duration of the infringement.

   Admittedly, the Commission’s margin of assessment when calculating the amount of the fine allows it, under normal circumstances, to take into account the last year of participation in the infringement as the reference period. Such a general approach is justified, since that margin of assessment allows the Commission to disregard any fluctuation in the value of sales during the years of the infringement, and since an increase in the value of sales may be the result of the cartel itself.

   However, where a merger has taken place during the course of a cartel in which only one of the parties participated before the merger, the value of the sales, during the last full year, of the entity resulting from the merger, multiplied by the number of years of the participation not only of that entity but also of the party which participated alone in the cartel before the merger, cannot constitute an ‘appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’ for the entire duration of the participation. By multiplying the value of sales of the entity resulting from the merger also by the number of years in which only one of the parties to the merger participated in the infringement, the Commission artificially increases the basic amount of the fine in a manner which does not reflect the economic reality during the years preceding the merger. It thereby infringes Article 23(3) of Regulation No 1/2003 and the principle of proportionality.

   (see paras 110-114)

5.  See the text of the decision.

   (see paras 132, 133)