Case T‑386/10

Aloys F. Dornbracht GmbH & Co. KG

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Plea of illegality — Gravity of the infringement — Mitigating circumstances — Equal treatment — Proportionality — Principle of non-retroactivity’

Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the Guidelines on the method of setting fines — Limits — Compliance with general legal principles

   (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Absence — Inadmissibility

   (Rules of Procedure of the General Court, Art. 44(1)(c))

3. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of an existing plea — Admissibility

   (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2))

4. EU law — General principles of law — Legal certainty — Principle that penalties must have a proper legal basis — Scope

   (Charter of Fundamental Rights of the European Union, Art. 49(1))

5. Competition — Fines — Amount — Determination — Legal context — Article 23(2) and (3) of Regulation No 1/2003 — Discretion conferred on the Commission by that Article — Introduction by the Commission of Guidelines on the method of setting fines — Infringement of the principle that penalties must have a proper legal basis and of the principle of legal certainty — No such infringement

   (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02)

6. EU law — Principles — Non-retroactivity of penal provisions — Scope — Fines imposed for infringement of the competition rules — Included — Whether principle breached as a result of the application of the Guidelines on the method of setting fines to an infringement predating their introduction — Foreseeability of changes made by the Guidelines — No breach

   (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notices 98/C 9/03 and 2006/C 210/02)

7. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect — Presumption — Conditions — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities

   (Art. 101(1) TFEU)

8. 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 — Account taken of the characteristics of the infringement as a whole — Account taken of objective matters relating to the situation of each undertaking — Scope — Limits

   (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 22)

9. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability to an undertaking on the basis of participation in the infringement considered as a whole — Conditions

   (Art. 101(1) TFEU)

10. Agreements, decisions and concerted practices — Concerted practice — Concept — Anti-competitive object — Criteria for assessment — No anti-competitive effects on the market — No direct link between the concerted practice and consumer prices — Irrelevant

    (Art. 101(1) TFEU)

11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Horizontal cartel concerning prices — Very serious infringement — No circumstances excluding that classification

    (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02)

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Conduct deviating from that agreed within the cartel — Limited involvement — Conditions — Extent of the burden of proof

    (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29, third indent)

13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Obligation to take account of the lack of knowledge of a small undertaking — No such obligation

    (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 12 and 29)

14. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Distinction between the final amount and the intermediate amount of the fine — Consequences

    (Council Regulation No 1/2003, Art. 23(2), second subpara.)

15. Competition — Fines — Amount — Determination — Imposition of the maximum amount on an undertaking — Lower amount for other members of the cartel — Breach of the principle of equal treatment — No such breach

    (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

16. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission

    (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

1.  See the text of the decision.

   (see paras 38, 245, 246, 252, 253)

2.  See the text of the decision.

   (see paras 44, 45)

3.  See the text of the decision.

   (see para. 51)

4.  See the text of the decision.

   (see paras 59-63)

5.  In competition matters, the adoption of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, inasmuch as it fell within the statutory limits laid down by Article 23(2) and (3) of Regulation No 1/2003, contributed to defining the limits within which the Commission exercises its discretion under that provision and did not infringe the principle that penalties must have a proper legal basis, but was conducive to observance of it.

   In the first place, in essence, adoption by the Commission of Guidelines contributes to ensuring observance of the principle that penalties must have a proper legal basis. In that regard, the Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting the amount of fines and, consequently, ensure legal certainty on the part of the undertakings. In the second place, as can be seen from point 2 of the Guidelines, the latter fall within the statutory limits laid down by Article 23(2) and (3) of Regulation No 1/2003, an article that meets the requirements deriving from the principle that penalties must have a proper legal basis and the principle of legal certainty. Finally, in the third place, in adopting the Guidelines, the Commission did not exceed the limits of the discretion afforded it by Article 23(2) and (3) of Regulation No 1/2003.

   (see paras 68-70, 78, 146)

6.  See the text of the decision.

   (see paras 84-90)

7.  See the text of the decision.

   (see paras 120-127, 132-134, 141)

8.  In competition matters, as is clear from the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission’s methodology when calculating fines comprises two stages. First, the Commission determines a basic amount for each undertaking or association of undertakings. That basic amount makes it possible to reflect the gravity of the infringement at issue, by taking into account, in accordance with point 22 of those Guidelines, a number of factors specific to it, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. Second, the Commission may adjust that basic amount upwards or downwards and, in that regard, take account of aggravating or mitigating circumstances which characterise the participation of each of the undertakings concerned.

   As regards, more specifically, the first stage of the methodology for calculating fines, the basic amount of the fine is related to the ‘gravity of the infringement’ multiplier, which reflects the degree of gravity of the infringement as such. However, from that first stage, account is also taken of objective factors relating to the specific, individual circumstances of each of the undertakings participating in that infringement. The ‘gravity of the infringement’ multiplier applies in conjunction with two individual, objective parameters, namely, the value of the sales of goods or services achieved by each of them, to which the infringement directly or indirectly relates in the relevant geographic area within the European Economic Area, and the duration of the participation of each undertaking in the infringement as a whole.

   Thus, an undertaking’s limited participation in the infringement found — that is to say, with regard to only one of three product sub-groups, indeed to only part of the sub-group — is taken into account by the Commission when calculating the basic amount of the fine. That basic amount is calculated, for each undertaking, on the basis of the value of its sales by Member State and for the relevant product sub-group.

   However, the Commission was entitled to determine the basic amount of the fine on the basis, inter alia, of the gravity of the infringement taken overall. It cannot therefore be held that the Commission was obliged to take into account the particular intensity, if it were to be proven, of the collusive arrangements regarding one of the product sub-groups at issue.

   (see paras 147, 148, 154, 171)

9.  See the text of the decision.

   (see paras 159-161, 165)

10.  See the text of the decision.

    (see para. 176)

11.  See the text of the decision.

    (see paras 177-181, 185-188)

12.  See the text of the decision.

    (see paras 194, 197)

13.  See the text of the decision.

    (see paras 203, 204)

14.  See the text of the decision.

    (see paras 216-221, 223)

15.  See the text of the decision.

    (see para. 225)

16.  See the text of the decision.

    (see paras 230, 231)